Temple American Inn of Court – March 2016 Sexual Misconduct on Campus

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TEMPLE AMERICAN INN OF COURT – MARCH 2016 SEXUAL MISCONDUCT ON CAMPUS

SOURCE MATERIALS

Cases

Bernard v. E. Stroudsburg Univ., Civ. No. 3:09-00525, 2014 WL 1454913 (M.D. Pa. Apr. 14, 2014) ...... 1

Frazer v. Temple Univ., 25 F. Supp. 3d 598 (E.D. Pa. 2014) ...... 33

Doe v. Temple Univ., Civ. No. 14-04729, 2014 WL 4375613 (E.D. Pa. Sept. 3, 2014) ...... 52

Doe v. Univ. of Massachusetts-Amherst, Civ. No. 14-30143, 2015 WL 4306521 (D. Mass. July 14, 2015) ...... 55

Journals & Law Reviews

Veronica J. Finkelstein, Giving Credit Where Credit Isn't Due (Process): The Risks of Overemphasizing Academic Misconduct and Campus Hearings in Character and Fitness Evaluations, 38 J. LEGAL PROF. 25 (2013) ...... 64

Wendy Adele Humphrey, “Let's Talk About Sex”: Legislating and Educating on the Affirmative Consent Standard, 50 U.S.F. L. REV. 35 (2016) ...... 82

Julie Novkov, Equality, Process, and Campus Sexual Assault, 75 MD. L. REV. 590 (2016) .....114

Matthew R. Triplett, Note, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 DUKE L.J. 487 (2012) ...... 136

Other Sources

Nick Anderson & Scott Clement, College Sexual Assault: 1 in 5 College Women Say They Were Violated, THE WASHINGTON POST (June 12, 2015) ...... Web Only

Moni Basu, Ghosts of Rape Past: Can a Survivor Find Solace in Return to the Crime Scene?, CNN.com (last updated Nov. 16, 2015) ...... 166

Emily Bazelon, Have We Learned Anything from the Columbia Rape Case?, NY TIMES MAGAZINE (May 29, 2015) ...... 180

Sheila Coronel, Steve Coll & Derek Kravitz, Rolling Stone and UVA: The Columbia University Graduate School of Journalism Report: An Anatomy of a Journalistic Failure, ROLLING STONE (Apr. 5, 2015) ...... 186

Margaret Hartmann, Everything We Know About the UVA Rape Case [Updated], NYMag.com (July 30, 2015) ...... 260

Christine Stoddard, One Year After Rolling Stone’s Disastrous “A Rape On Campus,” Here’s How University Virginia Classrooms Have Changed, BUSTLE (Dec. 18, 2015) ...... 272

Jeannie Suk, Shutting Down Conversations About Rape at Harvard Law, THE NEW YORKER (Dec. 11, 2015) ...... 283

Temple University, Presidential Committee on Campus Sexual Misconduct: Findings and Recommendations (2014) ...... 287

Bernard v. East Stroudsburg University, Slip Copy (2014)

and Jerry Salter, who have been dismissed by this Court because their claims were untimely. (Doc. 48). 2014 WL 1454913 Only the Westlaw citation is currently available. Prior to this, counsel for the plaintiffs and defendants United States District Court, stipulated to the dismissal without prejudice of the M.D. Pennsylvania. members of the Board of Trustees of East Stroudsburg Frantz BERNARD, et al., Plaintiffs University, Defendants Darell T. Covington, Amy v. Schaeffer Welch, Trudi Q. Delinger, Harry F. Lee, Hussain G. Malick, Nancy V. Perretta, L. Patrick Ross, EAST STROUDSBURG David M. Sanko, Robert H. Willever, and Eli Berman. UNIVERSITY, et al., Defendants. (Doc. 7). No. 3:09 CV 00525. | Defendants, East Stroudsburg University, Robert J. Signed April 14, 2014. Dillman, Kenneth Borland and Victoria L. Sanders (collectively hereinafter University Defendants) have moved for summary judgment on the remaining Plaintiffs' claims. (Doc. 93). I. Sanders has also moved MEMORANDUM OPINION for summary judgment on the remaining Plaintiffs' ROBERT D. MARIANI, District Judge. claims. (Doc. 128). The Court will address I. Sanders' motion in a separate opinion. The issues have been fully briefed and the parties have submitted extensive I. PROCEDURAL HISTORY documentary evidence in support of their respective *1 On February 13, 2009, Plaintiffs, Frantz Bernard, positions. Timotheus Homas, Anthony Ross, William Brown, Jerry Salter and Dejean Murray brought this action For the reasons that follow, summary judgment will in the Court of Common Pleas of Monroe County be entered in favor of Defendants, East Stroudsburg alleging violations of Title IX of the Education University, Robert J. Dillman, Kenneth Borland and Amendments Act of 1972, 20 U.S.C. § 1681, et seq., Victoria L. Sanders, with respect to all claims of the as well as violations by Defendants, East Stroudsburg Plaintiffs. University, the East Stroudsburg University Board of Trustees and individual Trustees, Robert J. Dillman, Isaac W, Sanders, Kenneth Borland and Victoria L. II. THE UNDISPUTED FACTS OF RECORD Sanders 1 , pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Further, the Plaintiffs alleged violations In accordance with Local Rule 56.1, the University by Defendants, East Stroudsburg University Trustees, Defendants have submitted a Statement of Material Dillman, Borland and V. Sanders, under 42 U.S.C. § Facts as to which they submit there is no genuine 1986. (Doc. 1). issue for trial. (Doc. 94). Plaintiffs have submitted their response to the University Defendants' Statement of 1 Material Facts (Doc. 109) with the result that many Isaac Sanders and Victoria Sanders are not of the numbered paragraphs of University Defendants' related. Statement of Material Facts have been admitted by An Amended Complaint was filed by the Plaintiffs the plaintiffs. In addition, there are other assertions of on April 7, 2009 (Doc. 4) and a Second Amended fact made by the University Defendants which, though Complaint was filed on July 14, 2009. (Doc. 28). responded to by the plaintiffs with a qualified denial, contain additional statements by Plaintiffs which are This Court previously granted the Motion to Dismiss in substance admissions of the University Defendants' of the Defendants named above with respect to the asserted facts. claims of Plaintiffs William Brown, Dejean Murray

*2 The following facts have been admitted except was terminated for cause on October 22, 2008, specifically noted: effective December 21, 2008. (Doc. 94, ¶ 9 3 ).

East Stroudsburg University is a public university of 3 Here again, the plaintiffs, in initially responding higher education and one of the 14 Pennsylvania state to Defendants' Statement of Fact, do so by system of higher education universities. (Doc. 94, ¶ 1). responding, “Denied as stated.” But, the very next sentence in Plaintiffs' Response is: “It is Defendant, Robert J. Dillman (Dillman), was the admitted I. Sanders was terminated for cause on President of East Stroudsburg from 1996 to 2012. October 22, 2008 effective December 21, 2008.” (Doc. 94, ¶ 2). Plaintiffs Bernard, Homas and Ross are former students of ESU. Bernard was enrolled at ESU as Dillman, in the beginning of 2007, began to make an undergraduate from the Fall Semester of 2006 plans to take a sabbatical and left East Stroudsburg through the Fall Semester of 2011 and graduated on University on sabbatical in January, 2008. He December 16, 2011. Plaintiff Homas attended ESU as remained on sabbatical for 18 weeks and returned in an undergraduate student from the Summer Session of May of 2008. (Doc. 94, ¶¶ 3, 4). 2000 to the Summer Session of 2004 and graduated in August, 2004. Homas then attended ESU as a Defendant, Kenneth Borland (Borland), was the graduate student from the Fall Semester of 2004 to Provost and Vice–President for Academic Affairs of the Spring Semester of 2005 and from the Summer East Stroudsburg University in 2007 and 2008 and Session of 2006 to the Fall Semester of 2007. Homas was Acting President while Dillman was on sabbatical. was awarded a Masters Degree from ESU in 2008. (Doc. 94, ¶ 5). Plaintiff Ross attended ESU as an undergraduate from the Fall Semester of 2003 to the Summer Session of In 2007, Defendant, Victoria L Sanders (V.Sanders), 2006 and graduated on May 9, 2008. (Doc. 94, ¶¶ 10– was the Associate Vice–President for Special Projects 13). and also the Assistant to the President for ESU. (Doc. 2 94, ¶ 6 ). The Advancement Office, of which Isaac Sanders was head, raised funds for ESU. (Doc. 94, ¶¶ 7,14). 2 This statement of fact presents an example of the plaintiffs initially denying the asserted fact The East Stroudsburg University Foundation, of which with the statement, “[d]enied as stated,” and then Sanders was the Chief Executive Officer, is a private, admitting the statement in a following sentence: non-profit corporation. (Doc. 94, ¶¶ 7, 15). In 2007 “It is admitted that, in 2007, Victoria Sanders and 2008, the East Stroudsburg University Foundation (“V.Sanders”) was the Director of Diversity was staffed by ESU employees who worked in the and an Associate Vice–President as well as an Advancement Office. (Doc. 94, ¶ 16). Assistant to the President.”

Isaac Sanders (I.Sanders), another Defendant in this ESU maintained a policy enacted on November 3, case against whom Plaintiffs have alleged claims of 1997 prohibiting discrimination and harassment. (Doc. sexual assault and harassment, was the Vice–President 94, ¶ 17). for Advancement at ESU as well as the head of the Advancement Office and the Chief Executive The policy expressly provided that: Officer of the East Stroudsburg University Foundation. (Doc. 94, ¶ 7). Isaac Sanders reported to two people, *3 No student or employee of the University, the Chair of the University Foundation Executive or contractor/vendor conducting business with the Committee, and Dillman. (Doc. 94, ¶ 8). University, may engage in illegally harassing conduct which creates a hostile learning or work The employment of Isaac Sanders with ESU was environment for other students or employees of the suspended on July 1, 2008. Thereafter, Isaac Sanders University.

and asked her to attend. That conversation was the (Doc. 94, ¶ 18). first time Victoria Sanders had heard of Bernard's complaint. (Doc. 94, ¶ 28). Plaintiffs, while admitting The policy defines harassment as “including the above, further state in their answer: It was well unwelcome conduct based on gender; clearly known on campus that I. Sanders repeatedly engaged offensive conduct; verbal, visual or physical behavior in improper sexual conduct with ESU students.” (Doc. that is targeted at an individual adversely affect 109, ¶ 28). [sic ] the learning environment; and criminal harassment.” (Doc. 94, ¶ 19). ESU employees were University Defendants assert that before her required to take a course in sexual harassment. (Doc. conversation with Hodge, Victoria Sanders had not 94, ¶ 20). been aware of any student complaints of sexual harassment by Isaac Sanders. (Doc. 94, ¶ 29). Plaintiffs The University's policy prohibiting discrimination respond with, “Denied as stated.” Plaintiffs then assert and harassment provided for a procedure for that “Plaintiff, Anthony Ross, states that Victoria the submission and investigation of complaints of Sanders' son, Lorenzo Sanders, who was a student discrimination and harassment. (Doc. 94, ¶ 21), Arthur at the University probably knew what was going on Breese, the University's Director of Diversity in since he was friendly with another victim, Dejean Campus Mediation, believed that, in 2007, ESU was Murray.” (Italics added). (Doc. 109, ¶ 29). Plaintiffs in compliance with its discrimination policy. (Doe.94, further state: “In addition, it was well known on ¶ 22). campus that I. Sanders repeatedly engaged in improper sexual conduct with ESU students.” (Id.). These In August of 2007, Plaintiff Bernard, Margaret statements do not present a proper and sufficient denial Omwenga, an ESU graduate student, and Micah Ash, of the University Defendants' assertion that Victoria an ESU student, contacted Attorney Albert R. Murray, Sanders, before she spoke with Professor Hodge, had Jr. for the first time regarding Bernard's allegations not been aware of any student complaints of sexual that he had been sexually harassed and assaulted harassment by Isaac Sanders. by Isaac Sanders between May, 2007 and August, 2007 while working as a work-study student in the *4 On August 24, 2007, Professor Hodge, Victoria Advancement Office. (Doc. 94, ¶ 23). Plaintiffs, in Sanders, Plaintiff Bernard and Attorney Murray met their Answer to this statement deny that “ESU [sic at Hodge's home where Bernard informed Victoria ] first notice of allegations of inappropriate conduct Sanders of the specifics of his allegations against Isaac by defendant Sanders occurred in August 2007,” and Sanders. (Doc. 94, ¶ 30). further assert that “employees and officials of ESU knew of I. Sanders' improper conduct with students This meeting was the first time that Plaintiff Bernard prior to Bernard's complaint, and had an obligation to had put the University on notice of what had report same.” (Doc. 109, ¶ 23). occurred with Isaac Sanders. (Doc. 94, ¶ 31). The Plaintiffs respond to this asserted statement of fact Omwenga was Plaintiff Bernard's girlfriend during the with “[d]enied as stated,” and further state that “[p]rior summer of 2007 and Bernard frequently lived with to his complaint, Frantz Bernard notified Maggie her. (Doc. 94, ¶ 25). Plaintiffs admit that “initially Omwenga (Omwenga) about the incident with I. Omwenga and Ash introduced Bernard to I. Sanders Sanders in the car. While Ms. Omwenga was a student and had nothing negative to say about him.” (Doc. 94, at the time, she was also employed by ESU but did not ¶ 26). report the improper activities of I. Sanders' reported to her by Bernard.” Nonetheless, Plaintiff Bernard, in On or about August 23, 2007, Attorney Murray his Deposition (Doc. 95–1), admits that his meeting on reached out to his friend and ESU professor, Dr. Donna August 24, 2007 at the home of Professor Hodge, at Hodge, to set up a meeting for Bernard to report his which Defendant, Victoria Sanders, was present with allegations regarding Isaac Sanders to ESU. (Doc. 94, Plaintiff Bernard and his counsel, was the first time that ¶ 27). That evening, Hodge called Victoria Sanders and informed her about the meeting with Bernard

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 3 Bernard v. East Stroudsburg University, Slip Copy (2014) he put the University on notice of what had occurred with Dr. Isaac Sanders: In further response, as early as 2006, Dillman Q. August 24, 2007, that Friday meeting at the home was told by numerous of Professor Hodge with Dr. Sanders present, your individuals, including Senior lawyer outside in the car, is that the first notice that Staff members Bolt and Robert you gave to the University about what had occurred Kelly (“Kelly”), and then with Dr. Sanders? head of Human Resources Susan McGarry (“McGarry”) A. Well, I didn't say he was outside in the car. I don't that I. Sanders was hiring know where he was. unqualified young African American males outside of Q. I thought you did. The record can bear me out. I University guidelines .... [and] thought you did say that? [a]s early as 2006, there were A. No. I said he was outside the house. also stories circulating in the Advancement Office that I. Q. I thought he was outside in the car, pardon me Sanders was running a ‘sex for me. Was Professor Hodge her house, Dr. Sanders ring’ involving international present, your lawyer outside not in a car, was that students going back to 2003, the first time that you put the University on notice Teresa Werkheiser, who was of what occurred with Dr. Sanders? told the story in 2006 by Vicky Cooke, I. Sanders' A. Yes.” former assistant, reported the information to Bolt, but (Doc. 95–1; 96, lines 21–25; 97, lines 1–13). that information was never investigated, Defendant, Victoria Sanders, referred Plaintiff Bernard to the University's Office of Diversity to file a *5 (Deposition citations omitted.) (Doc. 109, ¶ 36). complaint. (Doc. 94, ¶ 32). Plaintiffs deny, “as stated” that Victoria Sanders also told Bernard that he needed Plaintiffs further state “[i]n addition, it was generally to change his work-study assignment and, instead, known around campus that I. Sanders was engaging state that “Bernard left his position at the Advancement in inappropriate sexual relationships with students Office after an incident in which I. Sanders attempted he employed in the Advancement Office, including to touch his stomach and genitals.” (Doc. 109, ¶ 32). Homas.” [Deposition citations omitted]. (Id.) Immediately after the meeting of August 24, 2007, For the reasons explained later in this Opinion, these Victoria Sanders called University counsel, Andrew statements do not present a sufficient denial of the C. Lehman, and told him about Bernard's allegations University Defendants' assertion that Dillman had against Isaac Sanders. (Doc. 94, ¶ 34). never been made aware of any student complaints against Isaac Sanders prior to the phone call by Two days later, on Sunday, August 26, 2007, Victoria Victoria Sanders. The assertion by Plaintiffs that Sanders phoned Defendant Dillman and informed him Dillman was told that Sanders was “hiring unqualified of Bernard's allegations. (Doc. 94, ¶ 35.) young African–American males outside of University guidelines,” is not a statement that Dillman was University Defendants then assert that Dillman, prior told of any acts of sexual harassment, inappropriate to the phone call from Victoria Sanders, had never been sexual relationships with students, or sexual assaults of made aware of any student complaints against Isaac students by I. Sanders. The assertion that “there were Sanders. (Doc. 94, ¶ 36). Plaintiffs deny this statement also stories circulating in the Advancement Office with of material fact and state in support of their denial: respect to I. Sanders running a ‘sex ring” ‘ presents

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 4 Bernard v. East Stroudsburg University, Slip Copy (2014) unsubstantiated hearsay with no indication that these “stories” were ever presented to Dillman. Likewise, Plaintiffs, however, assert that Defendant I. Sanders the assertion that it was “generally known around attempted to intimidate Plaintiff Bernard. They assert campus” that I. Sanders was engaging in inappropriate that in November of 2007 “upon seeing Bernard from sexual relationships with students does not present a a distance on the ESU campus, I. Sanders made a sufficient denial of Dillman's lack of awareness of disgruntled gesture toward Bernard, throwing up his student complaints against Isaac Sanders prior to his hands and looking over his glasses in apparent protest phone call from Victoria Sanders on August 26, 2007. of Bernard's complaint against him.” (Doc. 109, ¶ 45).

On August 27, 2007, Plaintiff Bernard filed a Bernard further asserts that he was “harassed on complaint against Isaac Sanders with the Office of campus by persons associated with I. Sanders in an Diversity and Equal Opportunity. (Doc. 94, ¶ 37). attempt to prevent Bernard from following through Arthur Breese was the Director of Diversity in Campus with his complaint, including Defendant Dillman, who Mediation at ESU at that time and he reported to glared at Bernard when he saw Bernard in a campus Victoria Sanders, who was his immediate supervisor. store during the investigation.” (Id.) (Doc. 94, ¶¶ 38, 39). One of Breese's duties as Director of Diversity in Campus Mediation was to investigate Finally, Plaintiffs assert that in July of 2008, Bernard complaints of sexual or other type of harassment and received a death threat on his cell phone “from to prepare a report and send that report to the ESU what sounded like an African–American man with an vice-president of the department where the accused accident [sic ].” Plaintiffs further assert that Bernard ESU employee worked or to the President of ESU if “believed the threat was coming from I. Sanders, the harassment allegation was made against a vice- [Vincent] Dent's daughter or someone else connected president. (Doc. 94, ¶ 40). with the case.” (Doc. 109, ¶ 45).

Plaintiff Bernard had already stopped working in In addition to notifying ESU of his allegations on the Advancement Office before he first reported his August 24, 2007, Bernard, about that same time, allegations against Isaac Sanders to ESU on August 24, reported his allegations against Isaac Sanders to the 2007. Bernard stopped working at the Advancement Monroe County District Attorney. (Doc. 94, ¶ 46). Office when Isaac Sanders tried to touch him in the This resulted in the Monroe County District Attorney, Advancement Office kitchen some time in August, David Christine, making a phone call to ESU counsel 2007. (Doc. 94, ¶ 41). Lehman and to Jeffrey Cooper, then Chief Counsel for the State System of Higher Education, about the At the beginning of the Fall Semester, approximately Bernard case. (Doc. 94, ¶ 47). one week after Bernard met with Victoria Sanders and Hodge on August 24, 2007, ESU moved Bernard to Arthur Breese, in accordance with instructions he a work-study position in the Media Communications received from ESU counsel Lehman, wrote to Bernard Department. Arthur Breese gave Bernard a list of and told him that DA Christine wanted to talk with work-study positions and Bernard chose the Media him about his allegations against Isaac Sanders. Breese Communications Department position. (Doc. 94, ¶ 42). provided Plaintiff Bernard with both the location and phone number of the District Attorney's Office. (Doc. The hours and wages for Bernard's new position at the 94, ¶¶ 47, 48). Media Communications Department were the same as those Bernard received when he had worked in the ESU's Discrimination and Harassment Policy provides Advancement Office so that Bernard lost no income by that: “If the initial complaint of a violation of the move to the new job. (Doc. 94, ¶ 44). this Policy is received by any employee of the University other than in the Office of Diversity and *6 After Bernard filed his formal complaint on Equal Opportunity, the person contacted shall refer August 27, 2007, I. Sanders did not attempt to harass the complaint to the Office of Diversity and Equal him further. (Doc. 94, ¶ 45). Opportunity.” (Doc. 94, ¶ 49).

At the August 28, 2007 meeting between Breese As Director of the Office of Diversity and Equal and Bernard, Breese told Bernard who he was and Opportunity, Arthur Breese would handle a complaint what he was going to do. Breese told Bernard he as follows: the employee would come into his office would investigate the situation by looking at Bernard's and fill out a form; Breese would review the complaint statement and then contacting Isaac Sanders to let him and send out a letter to both the complainant and the know about the allegations against him. (Doc. 94, ¶ alleged offender; once the letter was sent out, Breese 56). would interview the complainant, the alleged offender, and witnesses from each of the two individuals; Breese also asked Bernard if he had witnesses. Bernard Breese would then prepare a report during which he identified Micah Ash and Margaret Omwenga. would consult with both counsel for the University Bernard told Breese that he had informed both Ash and his Supervisor, Victoria Sanders; once the report and Omwenga about the incidents with Isaac Sanders. was prepared, Breese would send it out to both Breese asked about other witnesses and Bernard could the complainant and the respondent, who could then not give any other names other than what he had submit comments on the report; at that point, the report already provided. 4 would be sent to the appropriate vice-president. If the respondent were a vice-president, the report went 4 Plaintiffs admit these facts but assert further to the President. (Doc. 94, ¶ 50). The parties agreed that it was “the responsibility of Breese that Breese conducted 20 to 25 investigations at ESU. to do a thorough investigation and generate (Doc. 94, ¶ 51). witnesses, documents and other evidence from Bernard's allegations.” Plaintiffs further allege *7 In this case, Breese interviewed Bernard on that “Breese did not interview any persons in August 28, 2007 and wrote a summary of Bernard's the Advancement Office, former work study allegations against Isaac Sanders. (Doc. 94, ¶ 52). students and others that might have corroborated Bernard also provided Breese with a written statement Bernard's claims because he was directed not to that he had prepared. (Doc. 94, ¶ 53). by Victoria Sanders and Lehman.” (Doc. 109, ¶ 57). These statements do not present a denial of In his statement, Bernard alleged that between May the facts asserted by the University Defendants in 26, 2007 and August 26, 2007, Isaac Sanders acted Paragraph 57 of the Statement of Material Facts. inappropriately with Bernard on several occasions In early September of 2007, Breese received two while Bernard was a work-study student in the written responses from Isaac Sanders to Bernard's Advancement Office. The statement alleged an off- written allegations against Isaac Sanders. Breese told campus sexual assault, two instances of attempted Bernard that he had notified Isaac Sanders of Bernard's unwanted touching on campus, and several on and off allegations against him and informed Isaac Sanders campus unwelcomed comments. The statement also that he would have a chance to respond to those alleged that Isaac Sanders obtained a job for Bernard allegations. (Doc. 94, ¶ 58). at the Alumni Center, secured financial aid for his summer courses and gave Bernard several personal At or about this same time, at Breese's request, Isaac gifts that included money. (Doc. 94, ¶ 54). Sanders identified Vincent Dent, who worked in the Advancement Office, as a witness. (Doc. 94, ¶ 59). In addition to the gifts and financial assistance which Isaac Sanders gave to Bernard, Bernard later Later in September of 2007, Bernard and Breese acknowledged to Breese that, two days after the off- met again. During the second meeting with Breese, campus sexual assault, Bernard telephoned Sanders for Bernard was shown Isaac Sanders' written response help in locating a place for Bernard to stay because he to Bernard's allegations. Bernard was given the had an argument with Omwenga and did not want to opportunity to comment on the response and identified stay with her. (Doc. 94, ¶ 55). what was true and false in the statements of Isaac Sanders and Dent, (Doc. 94, ¶ 60). Bernard submitted

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 6 Bernard v. East Stroudsburg University, Slip Copy (2014) two written statements to Breese for consideration as Breese, in a cover memorandum to Lehman, wrote: part of Breese's investigation. (Doc. 94, ¶ 61). Here is the summary of the final report. As the From late October of 2007 to mid-November, 2007, neutral investigator, it is difficult to ascertain if Breese interviewed Micah Ash, Isaac Sanders and anything happened. Please review and advise. I Vincent Dent. (Doc. 94, ¶ 63). The interviews were would like to allow Bernard and Sanders to come in recorded except for the interview with Plaintiff next week to review the report and, if they choose, Bernard, who refused to be recorded. (Doc. 94, ¶ to respond in writing to the written report. Thanks.” 64). Breese attempted to schedule an interview with (Doc. 95–19, 61:11–13) Margaret Omwenga, but she refused in part because she had consulted with her attorney and was advised When asked at his deposition what he meant by the not to get involved. Breese wrote this in an e-mail to above-quoted statement, Breese testified: ESU counsel Lehman on October 18, 2007. (Doc. 94, ¶ 65). A. Well, like I said, I was the neutral investigator, so I never assigned any blame or any guilt. It would be *8 There were no known eyewitnesses to the up to whoever-the vice-president of that department improper conduct alleged by Bernard against Isaac to really make that determination and ascertain if Sanders aside from Bernard and Isaac Sanders. (Doc. there was anything indicated. 94, ¶ 66). Q. But aren't you saying that it was difficult-based Isaac Sanders disputed Bernard's allegations of sexual upon what you see it was difficult to determine harassment and assault but did not dispute most of whether anything happened? Bernard's allegations concerning his assistance and gifts to Bernard. (Doc. 94, ¶ 67). A. Well, from the way I-as facts as presented by that- you know, it was one person's word against another.

Isaac Sanders admitted that he processed a grant so Q. He said/he said? that Bernard could enroll in classes for the summer and also told Breese that he secured a work-study position A. Exactly.” for Bernard in the Advancement Office. He further told Breese that he had helped Bernard with purchases, (Id., 61:18–25; 63:1–5). including prescription glasses. (Doc. 94, ¶ 68). Plaintiffs, in response to University Defendants' Bernard's written statements that he gave to Breese statement of fact with respect to Breese's deposition acknowledged that Bernard accepted assistance and testimony quoted above, begin with a qualified denial. gifts from I. Sanders after the date that Bernard (“Denied as stated.”). Further, Plaintiffs admit that alleged I. Sanders sexually assaulted him off-campus. Breese made these comments but assert that he (Doc. 94, ¶ 69), In admitting the above statement made them “initially” before the completion of the to be true, Plaintiffs further responded that Isaac investigation. Sanders provided these items, which were unsolicited by Bernard, to “groom and exploit Bernard.” Plaintiffs Given Breese's deposition testimony quoted above as further assert that “Bernard in fact rejected a gift of to his cover memorandum and its meaning, there is underwear that I. Sanders attempted to give him once no issue of material fact as to the content of Breese's he found the gift was from I. Sanders.” (Doc. 109, ¶ statements. 69). *9 ESU counsel Lehman made “some minor On November 28, 2007, after having concluded his grammatical edits to Breese's report.” (Doc. 94, ¶ 78). investigation, Breese sent a copy of his draft report to ESU counsel Lehman for review. (Doc. 94, ¶ 75). Thereafter, Breese informed Bernard and Isaac Sanders that his report was available for review

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 7 Bernard v. East Stroudsburg University, Slip Copy (2014) and Breese allowed them to review the report and about the details of Breese's investigation until he comment on it. (Doc. 94, ¶ 79). Both Bernard and Isaac received his final report on December 10, 2007. Sanders reviewed the report and submitted comments University Defendants further assert as fact that which Breese incorporated into the final report that he other than the initial phone call from Victoria ultimately submitted to Dillman. (Doc. 94, ¶ 80). Sanders in August of 2007, “Dillman never talked to Arthur Breese or Victoria Sanders about Bernard's Breese, in his deposition testimony, acknowledged that allegations.” Victoria Sanders did not give him her opinion as to the merits of the case initially when Plaintiff Bernard was Plaintiffs, in response, resort to the “denied as stated” about to file his complaint. (Doc. 94, ¶ 81; Doc. 109, qualified denial, Then, after asserting matters which ¶ 81). they submit were within Dillman's knowledge, but are not responsive to University Defendants' assertion Plaintiffs go beyond this admission in paragraph that Dillman knew nothing of the details of Breese's 81, asserting that Victoria Sanders directed Breese investigation until he received Breese's final report, to only investigate the sexual harassment issue and state: “It is admitted that Dillman never talked not to inquire into the financial aspects of the to Arthur Breese about his investigation until the case. Plaintiffs further assert that Victoria Sanders investigation was concluded .” and Lehman directed Breese only to interview Bernard, Isaac Sanders, and any witnesses those two *10 The parties agree that Breese acknowledged individuals specifically identified. They further assert that Victoria Sanders never told him that she was that as a result, Breese was “unable to interview updating Dr. Robert Dillman on the investigation and other employees or students in the Advancement never mentioned to Breese anything about the possible Office.” Lastly, Plaintiffs assert that Victoria Sanders impact of his investigation on President Dillman. (Doc. and Lehman “strictly limited the scope of Breese's 94, ¶ 84). investigation into the specific allegations in Bernard's complaint, causing him to omit relevant evidence from Breese further acknowledged that he did not discuss the investigation, including the e-mail of the stick the investigation with Dillman while Breese was figure with a gas pump inserted in his rectum.” Breese conducting his investigation. (Doc. 94, ¶ 85), Breese's testified that Victoria Sanders turned over to him an final report was submitted to Dillman on December 10, e-mail from Isaac Sanders which she described as 2007 and, after he submitted his final report, he had a a “stick figure with a gasoline pump up someone's brief telephone conversation with Dillman. (Doc. 94, rectum.” (Doc. 95–19; 37:4–18). Breese testified that ¶¶ 86, 87). the picture described above had been taken from Isaac Sanders' computer and given to him by Victoria Plaintiffs dispute the University Defendants' assertion Sanders. He testified that Victoria Sanders said that the that before Bernard's complaint on August 24, 2007 e-mail was “inappropriate.” (Id., 2–19). regarding Isaac Sanders, “[i]t was ESU's practice not to accept anonymous letters as a basis for an investigation Breese testified at his deposition that ESU counsel into discrimination or harassment.” (Doc. 94, ¶ Lehman never hindered or prevented him from 88) Plaintiffs, however, in further response, state: performing his investigation: “Breese stated it was ESU's practice not to follow up on accusations made solely through anonymous Q. Did he ever hinder or prevent you from letters.” (Emphasis in the original). performing your investigation? Breese himself testified that during his investigation A. No.” of the Bernard complaint, he heard nothing about (Doc. 95–19; 112:24–25; 113:1). anonymous letters being sent out and received no anonymous letters in connection with his In their Statement of Material Facts, ¶ 83, University investigation from Victoria Sanders which related to Defendants assert as fact that Dillman knew nothing

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 8 Bernard v. East Stroudsburg University, Slip Copy (2014) his investigation into the Bernard complaint. (Doc. 95– 2007, addressed to Dr. Dillman, wherein the writer, 19; 63–25; 65:1–20). with respect to Isaac Sanders, observes only that: “You have your hands full with Sanders....” Finally, a similar On October 1, October 10 and November 6, 2007, letter was sent addressed to former Foundation Chair ESU received three anonymous letters addressed to William Cramer. Defendant Dillman. On November 15 and November 20, 2007, ESU received copies of two more *11 Because one of the anonymous letters stated that anonymous letters, both dated November 1, 2007. Isaac Sanders had been arrested, Dillman asked ESU's One of these two letters had been addressed to ESU's Chief of Police, Robin Olson, to review campus police Council of Trustees and the other had been addressed records and to check with Stroud Area Regional Police to a former ESU Foundation Board member. All of the Department to see if Isaac Sanders had been charged anonymous letters were received after Bernard made with anything. (Doc. 94, ¶ 97). his initial allegations to Breese in August of 2007. (Doc. 94, ¶ 91). Olson, it is admitted by Plaintiffs, did not find arrest records. (Doc. 94, ¶ 98 5 ). The first letter, dated September 28, 2007, made no reference to any alleged sexual improprieties involving 5 Plaintiffs' response to Statement of Material Isaac Sanders. (Doc. 94, ¶ 93). Facts, ¶ 98, begins with the phrase, “Denied as statedf,]” but then admits that Olson did not find The four remaining letters that referred to Isaac arrest records. Sanders make various accusations. However, they The parties agree that some of these letters were turned do not provide details of Isaac Sanders' alleged over to authorities, (Doc. 94, ¶ 99). misconduct, including dates, times, names of witnesses or any victim, except that Plaintiff Bernard is On January 7, 2008, Dillman sent his written decision mentioned once by his first name. Nor do these to Bernard. (Doc. 94, ¶ 107). Dillman wrote that letters state the source of the writer's information, any he found that there was “insufficient evidence to information indicating that the source was reliable, support the allegation of sexual harassment.” (Doc. or how the writer became aware of the information 94, ¶ 108). Plaintiffs, while admitting this fact, assert provided. (Doc. 94, ¶ 94). The letters contained a threat that “Dillman based his decision on an investigation to send the letters to the ESU Council of Trustees, law that Breese stated ‘was not thorough’.” Plaintiffs enforcement and the press if Defendant Dillman did further assert that “there is substantial evidence not take action. The letters were in fact sent to the that Dillman dismissed the complaint to protect I. aforementioned parties. (Doc. 94, ¶ 95). Sanders' and Dillman's reputations.” Plaintiffs make reference to Charmaine Clowney, Esquire, former The anonymous letters consist of a letter dated PASSHE Assistant Vice Chancellor for Diversity and September 28, 2007 to Dr. Dillman (Doc. 95–13, Multicultural Affairs, and assert that “V. Sanders p. 21), which is directed at then-ESU Foundation told her that ESU's administration wanted to prevent employee, Vincent Dent; a letter dated October 10, Dillman from receiving another vote of no confidence 2007 directed to Dr. Dillman, which makes reference from the faculty after he had received two such to Isaac Sanders' “assignations” and “gay liaisons” votes, the last in 2006.” Plaintiffs then assert, with students (Doc. 95–13, p. 24); and an undated “[k]eeping the investigation strictly confidential and letter which bears a receipt stamp of November 6, dismissing the complaint protected Dillman and 2007 to Dr. Dillman, which references both Dent and his reputation.” (Doc. 109, ¶ 108). A review of Isaac Sanders and notes that “people are disgusted the Verified Statement With Exhibit of Charmaine with those that use their position to gain sexual favors Clowney (Doc. 110–31) and the attachment to her from young people (even if they are slightly over 18).” statement of a newspaper article containing an This letter makes reference to unidentified students interview she gave to the Pocono Record, published and characterizes Isaac Sanders as a “full fledged on March 15, 2009, shows Clowney criticized East predator”; an additional letter dated November 1, Stroudsburg University and the Pennsylvania State

System of Higher Education in general for failure to this case had ever witnessed any improper conduct track complaints of discrimination, including sexual between Isaac Sanders and any student in the discrimination and sexual harassment. She stated that Advancement Office.” (Doc. 94, ¶ 118). Plaintiffs she “worried” about the qualifications of ESU's Social respond with “[d]enied as stated.” (Doc. 109, ¶ 118). In Equity Director, Victoria Sanders. She then indicated support of such denial, the Plaintiffs state: “Werkheiser that she was “perturbed by statements she heard stated that she found it ‘odd’ that I. Sanders would Victoria Sanders make twice.” The newspaper article ‘take home’ the international students (deposition attached to the Verified Statement of Clowney then citations omitted). Werkheiser also testified that states: Drame told her that Plaintiff Homas came to her and told her about I. Sanders' sexual assaults of According to Clowney, Victoria Sanders said that him.” (Id.). Plaintiffs also make reference to the the purpose of EEO policy was to protect faculty Verified Statements of Dent and LaShawne Pryor. and administration from being subjected to student Thus, Plaintiffs have not addressed by an admission or complaints. denial the specific assertion of fact in paragraph 118. Clowney contends that Victoria Sanders explained Plaintiffs, in denying that Defendant Borland was not to her that ESU administration wanted to prevent aware of Bernard's allegations against Isaac Sanders Dillman from receiving another vote of no until mid-January of 2008 (Doc. 94, ¶ 120), base their confidence from the faculty. He received two denial on statements that “Victoria Sanders provided such votes, the last in 2006. Keeping faculty and a copy of the Breese report to Borland, on or about administration free from complaints was a way to January 3, 2008, when Borland took office as Acting prevent that, Clowney said of Victoria Sanders.” President, and prior to January 7, 2008....” Plaintiffs (Doc. 110–31, p. 12). also assert that Borland, prior to becoming Acting President, “knew of allegations and rumors regarding On this basis, Plaintiffs assert, as noted above, I. Sanders' sexual improprieties, was aware that there “there is substantial evidence that Dillman dismissed was an investigation pending against I. Sanders, and the complaint to protect I. Sanders' and Dillman's heard other rumors about the anonymous letters but did reputations.” not see them until later,” citing to Borland's deposition. Plaintiffs also assert that Borland, in October of 2007, After Defendant, Kenneth Borland, assumed the “heard rumors on campus that I. Sanders had been position of Acting President, he had a series of stopped by the police near Stroudsmoor and was found meetings with staff from the Advancement Office. with a man,” again citing to Borland's Deposition. These meetings involved complaints about Isaac Whether these assertions present a sufficient basis for Sanders' management of the Advancement Office a denial of Defendants' assertion that Borland was not and alleged mistreatment of full-time staff. Borland aware of Bernard's allegations against Isaac Sanders met separately with John Ross, Vincent Dent, Isaac until mid-January, 2008 is addressed in the analysis Sanders, and Bob Kelley on January 4, 2008. Borland portion of this Memorandum. met with Carolyn Bolt on January 14, 2008. (Doc. 94, ¶¶ 109–111). Borland also met at separate times with Plaintiff Bernard, on March 26, 2008, initiated the Teresa Werkheiser, John Shewchuck and Christina complaint filing process with the Pennsylvania Human Mace. On January 16, 2008, Borland met with Tanya Relations Commission. ESU was not served with the Williams, (Doc. 94, ¶¶ 115, 116). Plaintiff Bernard's PHRC Complaint until July, 2008 and, thereafter, ESU allegations against Isaac Sanders were not discussed at filed an Answer with the PHRC denying liability. any of these meetings and nor were any other student (Doc. 94, ¶¶ 121–123). complaints of sexual harassment or sexual assault by Isaac Sanders discussed. (Doc. 94, ¶ 117). PHRC, by letter dated March 16,2009, notified ESU that it had reviewed Bernard's complaint of *12 University Defendants assert that “no member discrimination and determined that it should be closed of the Advancement Office who has been deposed in

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 10 Bernard v. East Stroudsburg University, Slip Copy (2014) administratively and gave Bernard notice of his right 2008, ESU was notified through Bernard's counsel that to sue. (Doc. 94, ¶ 124). five former ESU students were going to bring claims against the University. Plaintiffs admit that only five On June 8, 2008, the Pocono Record ran a story that former students were the subject of unwanted sexual additional students were coming forward claiming that harassment and assault by Isaac Sanders and that three Isaac Sanders had sexually harassed or abused them. of the students who initially joined in this suit with (Doc. 94, ¶ 125). Bernard, William A. Brown, III, Dejean Murray and Jerry Salter had their claims dismissed as untimely. Dillman placed Isaac Sanders on administrative leave, after discussing the matter with University counsel Of the remaining Plaintiffs, Homas alleges that he was and Thomas Krapsho, the State System's Vice– sexually assaulted by Isaac Sanders off campus in the Chancellor for Human Resource and Labor Relations. Fall of 2004 while a graduate student and that he was The decision to place Isaac Sanders on administrative again sexually assaulted by Isaac Sanders at the end leave was made jointly between Dillman and Krapsho. of the Spring Semester 2005. (Doc. 94, ¶¶ 130, 131). (Doc. 94, ¶ 126). Homas left ESU after the Spring Semester of 2005 and, when he returned to ESU for the summer session of *13 While admitting these facts, Plaintiffs also 2006, he accepted a work-study position with Isaac assert that “Dillman failed to place I, Sanders on Sanders in the Advancement Office. (Doc. 94, ¶ 132). administrative leave until almost a year after Bernard Homas then alleges that in the spring of 2007, he made his complaint, even though, when allegations was sometimes tricked and at other times forced by had been made against Julie Anne Simpson, the Isaac Sanders into performing sexual acts on numerous women's basketball coach, Dillman had directed that occasions. (Doc. 94, ¶ 133). Simpson be placed on administrative leave until the investigation was complete because he might ‘have Plaintiffs deny that Homas failed to report the sexual to deal with Coach Simpson in follow-up activities assaults to ESU prior to reporting it to his attorney surrounding these charges.’ “ (Doc. 109, ¶ 126). in the summer of 2008, Plaintiffs, in support of this denial, assert that Homas would hide in the office At this time, ESU hired an outside law firm to conduct of Michelle Drame, who was an ESU employee in an investigation into the allegations reported in the the Advancement Office and that, from time to time, Pocono Record (Doc. 94, ¶ 27) and, by letter dated July Homas mentioned to Drame that Isaac Sanders was 1, 2008, Isaac Sanders was placed on administrative Intimate with student workers and staff and that there leave “effective immediately.” (Doc. 94, ¶ 128). The were Inappropriate things going on sexually' [Homas letter placing Isaac Sanders on leave instructed him Dep. 172:2–175:25, 177:16–25, 178:4–182:5].” (Doc. that, “absent prior approval by Dillman or Victoria 109, ¶ 134). Sanders, he was not permitted on campus, nor could he contact any University employee, student, donor or *14 Plaintiff Anthony Ross alleges that he was potential donor.” subjected to unwelcome touching on approximately three occasions between May, 2006 and January, While admitting these facts, Plaintiffs further respond 2007, He further alleges that Isaac Sanders also made that despite the explicit instructions prohibiting Isaac unwelcome comments during that time. (Doc. 94, ¶ Sanders from returning to campus or from contacting 135). any students, Isaac Sanders did attempt to contact Plaintiff Anthony Ross multiple times, caused Bernard Plaintiff Ross did not report his allegations to ESU to be threatened and, through Dent, attempted to until July of 2008, after Isaac Sanders was placed on intimidate Salter and dissuade him from pursuing his leave. (Doc. 94, ¶ 138). claims against Isaac Sanders. (Doc. 109, ¶ 128). William A. Brown, III, whose complaint in this matter In paragraph 129 of Defendants' Statement of Material was dismissed, never reported his allegations to ESU Facts, Defendants assert that during the summer of

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 11 Bernard v. East Stroudsburg University, Slip Copy (2014) until after he came forward in the summer of 2008 through Attorney Murray. (Doc. 94, ¶ 141). II. STANDARD OF REVIEW Dejean Murray, whose complaint in this matter was dismissed, never reported his allegations to ESU until Through summary adjudication, the court may dispose after he came forward in the summer of 2008 through of those claims that do not present a “genuine issue as Attorney Murray. (Doc. 94, ¶ 144). to any material fact .” FED. R. CIV. P. 56(a). Summary judgment “should be rendered if the pleadings, the Jerry Salter, whose complaint in this matter was also discovery and disclosure materials on file, and any dismissed, never reported his allegations to ESU until affidavits show that there is no genuine issue as to he came forward in the summer of 2008 through any material fact and that the movant is entitled to Attorney Murray. (Doc. 94, ¶ 147). judgment as a matter of law.” FED. R. CIV. P. 56(c); Turner v. Schering–Plough Corp., 901 F.2d 335, 340 ESU terminated Isaac Sanders' employment in the (3d Cir.1990). “As to materiality, ... [o]nly disputes following sequence: over facts that might affect the outcome of the suit under the governing law will properly preclude the Dillman received the investigation report from the entry of summary judgment.” Anderson v. Liberty outside law firm on September 26, 2008. Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Following receipt of the report, Dillman conducted a pre-disciplinary conference with Isaac Sanders on *15 The party moving for summary judgment bears October 3, 2008. the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, On October 22, 2008, Dillman sent Isaac Sanders a 477 U.S. 317,323,106 S.Ct. 2548, 91 L.Ed.2d 265 letter stating that his employment with the University (1986). Once such a showing has been made, the non- was being terminated for cause. The letter set forth moving party must offer specific facts contradicting the reasons for the termination, including sexual those averred by the movant to establish a genuine advances towards students. The termination was issue of material fact. Lujan v. Nat'l Wildlife Fed'n, effective December 21, 2008. (Doc. 94, ¶¶ 148–150). 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may Since August 24, 2007, Plaintiff Bernard admits that not oppose summary judgment simply on the basis there was no further unlawful touching by Isaac of the pleadings, or on conclusory statements that Sanders. Bernard, however, asserts attempts by Isaac a factual issue exists. Anderson, 477 U.S. at 248. Sanders to intimidate him. (Doc. 109, ¶ 151). Rather, the opposing party must point to a factual dispute requiring trial and the district court “may Plaintiff Homas denies that there have been no limit its review to the documents submitted for the subsequent incidents of sexual harassment by Isaac purposes of summary judgment and those parts of the Sanders since May of 2007, asserting that Isaac record specifically referenced therein.” Carmen v. San Sanders, after his dismissal from ESU, approached Francisco Unified School Dist., 237 F.3d 1026, 1030– Homas and his son on or about June of 2009, and 1031 (9th Cir.2001); see also Forsyth v. Barr, 19 F.3d “stood close to Homas and tried to touch him as 1527 1527, 1537 (5th Cir.1994). “Inferences should be Sanders laughed.” (Doc. 109, ¶ 152). drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence Defendant Ross denies that aside from Isaac Sanders' contradicts the movant's, then the non-movant's must attempts to hug him in May of 2008, there have been be taken as true.” Big Apple BMW, Inc. v. BMW of no incidents of sexual harassment by Sanders since N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. early 2007. In support of this denial, Ross testified that denied 507 U.S. 912, 113 S.Ct. 1262, 122 L Ed.2d 659 Isaac Sanders continued to call him and send him text (1993). messages through October of 2008. (Doc. 109, ¶ 153).

abuse in question. Rosa H. v. San Elizario Indep. School Dist., 106 F.3d 648, 660 (5th Cir.1997). III. ANALYSIS

Recovery based on the principles of respondeat A. Count I–Title IX superior or constructive notice “frustrate[s] the purposes” of Title IX, and therefore the school official In relevant part, Title IX provides that “no person ... must have actual knowledge in order for the plaintiff shall, on the basis of sex, be excluded from to prevail. Gebser, 524 U.S. at 285. Actual notice participation in, be denied the benefits of, or be necessitates more than a simple report of inappropriate subjected to discrimination under any education conduct, however the standard “does not set the bar so program or activity receiving Federal financial high that a school district is not put on notice until it assistance .” 20 U.S.C. § 1681(a). Title IX can also receives a clearly credible report of sexual abuse from be enforced through a private right of action wherein the plaintiff-student.” Escrue v. Northern OK College, monetary damages are available. Gebser v. Lago Vista 450 F.3d 1146, 1154 (10th Cir.2006) (quoting Doe v. Indep. School Dist., 524 U.S. 274, 281, 118 S.Ct. School Administrative Dist. No. 19, 66 F.Supp.2d 57, 1989, 158 A.L.R. Fed. 751 (1998) (citing Cannon v. 62 (D.Me.1999)). Therefore, while actual knowledge University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, does not require absolute certainty that harassment has ; Franklin v. Gwinnett County 60 L Ed.2d. 560 (1979) occurred, there must be more than an awareness of a Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L mere possibility of the harassment. Bostic v. Smyrna Ed.2d 208 (1992)). In imposing a duty upon a funding School Dist., 418 F.3d 355, 360 (3d Cir.2005). The recipient not to discriminate on the basis of sex, Title educational institution has ‘ “actual knowledge’ if IX encompasses sexual harassment, including when it knows the underlying facts, indicating sufficiently a teacher “sexually harasses and abuses a student.” substantial danger to students, and was therefore aware Franklin, 503 U.S. at 75. of the danger.” Id. at 361.

Under Title IX, a plaintiff cannot recover damages Upon a showing of actual knowledge, Plaintiff must “unless an official of the school district who at a show that the funding recipient exercised deliberate minimum has authority to institute corrective measures indifference. A funding recipient is “deliberately on the district's behalf has actual knowledge of, and is indifferent” when the recipient's response to the deliberately indifferent to, the teacher's misconduct.” harassment, or lack of response, is “clearly Gebser, 524 U.S. at 277. Accordingly, in a case unreasonable in light of the known circumstances.” such as this, under Title IX, to proceed on a claim Davis Next Friend LaShona D. v. Monroe County Bd. against an educational institution, the student must of Educ., 526 U.S. 629, 648–643, 119 S.Ct. 1661, 143 establish a prima facie case demonstrating that (1) he L Ed.2d 839 (1999). Deliberate indifference requires was subjected to a sexually hostile environment or an “official decision by the recipient not to remedy the quid pro quo sexual harassment; (2) an “appropriate violation.” Gebser, 524 U.S. at 290. This is an exacting person”, who at minimum had authority to take and strict standard requiring that the official disregard corrective measures on the district's behalf, was given a known or obvious consequence of his action or actual notice; and (3) the institution's response to the inaction. Therefore, the appropriate remedial action misconduct or harassment amounted to “deliberate necessarily depends on “the particular facts of the case- indifference.” Klemencic v. Ohio State University, 263 the severity and persistence of the harassment, and the F,3d 504, 510 (7th Cir.2001); Morse v. Regents of effectiveness of any initial remedial steps.” Rosa H., the Univ. of Colorado, 154 F.3d 1124, 1127–28 (10th 106 F.3d at 661. Cir.1998) (citing Gebser, 524 U.S. at 289–91). Furthermore, deliberate indifference incorporates a *16 A person with authority to take corrective causation requirement. The Title IX funding recipient's actions is a person with the “supervisory power over deliberate indifference must subject the students to the offending employee,” including the power to further harassment, to wit, the indifference must discipline the employee and take action to end the “cause students to undergo harassment or make them

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 13 Bernard v. East Stroudsburg University, Slip Copy (2014) liable or vulnerable to it.” Davis, 526 U.S. at 644– whether or not the conduct alleged rises to the level of 645 (internal quotations omitted). This harassment a hostile educational environment.” (Id. at 51, 52). must take place in a context subject to the school's control. Id. at 645. Therefore, the school is only liable As Plaintiffs and Defendants correctly state, to when “the recipient exercises substantial control over establish a quid pro quo sexual harassment claim, the both the harasser and the context in which the known plaintiff must show that (1) he belongs to a protected harassment occurs.” Id. This causation element results group; (2) he was subject to unwelcome sexual in a requirement that harassment, or the likelihood or harassment; (3) the harassment was based on his sex; vulnerability of a student to be subjected to it, must and (4) that submission to, or rejection of, the sexual occur subsequent to an official's decision to not remedy harassment resulted in a tangible educational action. a known violation. E.N. v. Susquehanna Twp. School Dist., No. 1:09– CV–1727, 2011 WL 3608544 at *13 (M.D.Pa.2010) *17 The fact that the appropriate person's initial (citing Bonenberger v. Plymouth Twp., 132 F .3d response does not remedy or prevent the harassment, 20, 27 (3d Cir.1997) (enumerating elements of a or that the school does not use a particular method Title VII claim for quid pro quo sexual harassment)); to remedy or prevent the harassment, does not see also McGraw v. Wyeth–Ayerst Labs., Inc., 1997 provide sufficient grounds for liability. Baynard v. WL 799437 at *3 (E.D.Pa. Dec. 1997) (“To make Malone, 268 F.3d 228, 236 (4th Cir.2001). While “a out a claim for quid pro quo sexual harassment, an minimalist response is not within the contemplation employee must show that a supervisor conditioned of a reasonable response,” the absence of a more tangible job benefits on the employee's submission aggressive action does not amount to deliberate to unwelcome sexual conduct or penalized [him] for indifference. Escrue, 450 F.3d at 1155 (quoting Vance refusing to engage in such conduct.”). Under Title IX, v. Spencer County Pub. School Dist, 231 F.3d 253, 260 the plaintiff must establish that a tangible educational (6th Cir.2000)). Consequently, the funding recipient is action resulted from plaintiff's refusal to submit to not required to “engage in [a] particular disciplinary the sexual demands. Crandell v. New York College action.” Davis, 526 U.S. at 648. of Osteopathic Medicine, 87 F.Supp.2d 304, 318 (S.D.N.Y.2000).

*18 Plaintiffs argue that “the record ... is replete 1. Quid Pro Quo Sexual Harassment with evidence of I. Sanders giving the Plaintiffs gifts, To establish a prima facie case against an educational offering and/or providing them with jobs and paying institution under Title IX, a plaintiff must first the tuition for their classes, all as an inducement show the presence of a genuine issue of material or in return for their submission to his sexual fact as to whether he was subjected to quid advances.” (Doc. 107–2, at 52). pro quo sexual harassment or a sexually hostile environment. Klemencic, 263 F.3d at 510. Here, With respect to Bernard, I. Sanders did not deny Plaintiffs allege a claim of quid pro quo harassment most of Bernard's allegations concerning his assistance by I. Sanders toward Bernard, Homas, and A. Ross. and gifts to Bernard and admitted that he processed (Doc. 107–2, at 51). Plaintiffs have not claimed, a grant so that Bernard could enroll in summer nor argued, that there is evidence of a sexually classes. (Doc. 94, ¶¶ 67–68). According to I. Sanders, hostile educational environment, asserting instead that this help included money for food, prescription whether the conduct that they have alleged rises glasses, rent, and to have his car repaired. (Internal to the level of a hostile educational environment Investigation Memorandum, Doc. 95–13, Ex. 18, at is “plainly irrelevant.” (Id. at 52). Therefore, it is 3–4). Nonetheless, in Bernard's letter in response to unnecessary for the Court to analyze whether a Breese's internal investigation report, Bernard stated hostile educational environment claim is viable given that “[he] was not promised or told by Isaac Sanders Plaintiffs' statements that “the evidence in the record that [he] would be given these things” (referring to here plainly states a claim of quid pro quo harassment money and food), that he “never requested anything for all three Plaintiffs” and that “it is plainly irrelevant from [I. Sanders],” and that he told I. Sanders that

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 14 Bernard v. East Stroudsburg University, Slip Copy (2014) paying for his eyeglasses “was not necessary.” (Doc. Sanders' office to pick up a reference from him in May, 95–13, Ex. 18, at 1–2). Bernard also claimed that 2008. when I. Sanders attempted to fondle him in the car, Bernard rebuffed his advances, that he refused to *19 Homas returned to ESU to complete his graduate accept underwear from I. Sanders, told I. Sanders not to degree in the Summer of 2006. Homas claims that, send him e-mails such as the picture depicting a stick- in Spring, 2007, while working in the Advancement figure and gas pump, and that he “jerked back” when Office, I. Sanders would regularly trick Homas into I. Sanders reached over to touch Bernard's stomach performing oral sex on him in I. Sanders' office. (Dep. in the Advancement Office kitchen, and then pulled of Timotheus Homas, at 118, 132–134). 6 away when I. Sanders attempted to touch his private parts on that same occasion. (Internal Investigation 6 While Plaintiffs broadly assert that “the evidence Memorandum, Doc. 95–13, Ex. 18, at 3–4). in the record here plainly states a claim of quid pro quo sexual harassment for all three Plaintiffs also rely on Breese's “finding that there Plaintiffs,” they do not cite to any specific were, in fact, claims of quid pro quo harassment instances. (Doc. 107–2, at 51). In turn, University claims.” (Id.). However, Breese only stated in his Defendants assert that “there is no evidence in deposition that he “thought, maybe, quid pro quo this record supporting a quid pro quo claim would come in” and therefore wanted more latitude to by either Bernard or Ross.” (Doc. 120, at 25). investigate financial matters, but admitted that Bernard University Defendants previously admitted that never alleged quid pro quo and never suggested to Homas' allegations, if true, could meet the Breese that he had given sexual favors in exchange Title IX requirement of a sexually hostile work for things that I. Sanders was doing for him. (Dep. of environment. (Doc. 102, at 28). It is unclear Arthur Breese, at 19, 137–138). whether University Defendants also believe that Homas could meet the requirement to establish quid pro quo. With respect to A. Ross, in June, 2006, I. Sanders allegedly put “his hands in [Ross] upper thighs next to Plaintiffs' specific claims of sexual advances by I. [Ross'] genitals” while telling Ross that he “[would] Sanders, in conjunction with I. Sanders' admissions take care of everything.” (Stmt. of Anthony Ross, at 5– that he gave money and gifts to Bernard, paid 6). During this encounter, I. Sanders also hugged Ross A. Ross' tuition bill, and provided A. Ross with and rubbed his back “down towards [Ross] butt.” (Id. a job reference, raise triable issues of fact as to at 6). In July or August, 2006, I. Sanders allegedly the presence of quid pro quo sexual harassment. offered Ross a graduate assistantship working for him However, while the Court recognizes the presence in the Advancement Office, telling Ross that “all of these factual issues as to each Plaintiff, the [Ross] had to do was pretty much get paperwork stuff plaintiffs fail to establish the other elements necessary done and [I. Sanders] was going to pretty much take to establish liability on the part of the University care of the rest....” (Dep. of Anthony Ross, at 25–26, Defendants under Title IX, specifically, actual notice 79–81). Ross rejected this offer. Later that year, while and deliberate indifference. As the Court will discuss in I. Sanders' office, I. Sanders rubbed Ross' back, in detail when addressing these two elements, infra, leaned his body against Ross' back, and put his genitals with respect to Bernard, ESU immediately began against Ross' shoulder. (Id. at 8). Ross further alleges an investigation of Bernard's official complaint; this that I. Sanders also made unwelcome and inappropriate investigation was in accordance with the University's comments during that time. (Stmt. of Anthony Ross, Notice of Nondiscrimination; the investigation was not at 5–8). I. Sanders also paid Ross' outstanding tuition clearly unreasonable; and Dillman, as the appropriate bill to the University in September, 2007. However, I. person, considered the final investigation report and Sanders did not tell Ross about this payment. I. Sanders determined that it contained insufficient evidence to allegedly attempted to have further contact with A. support Bernard's allegation of sexual harassment. Ross after this time, including an allegation that I. Therefore, as a matter of law, the University Sanders attempted to hug Ross when Ross went to I. Defendants were not deliberately indifferent as to Bernard. Further, as to Ross and Homas,

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 15 Bernard v. East Stroudsburg University, Slip Copy (2014) the two plaintiffs did not come forward until June, 2008. Consequently, with respect to Breese's Plaintiffs contend that University Defendants, and investigation, there cannot be allegations of an specifically Dillman, had actual knowledge of I. inadequate investigation because Ross' and Homas' Sanders' harassment, or at minimum, knowledge of claims had not been presented at the time of this underlying facts indicating a sufficiently substantial investigation and therefore University Defendants danger to the students. (Doc. 107–2, at 45–47). In cannot be said to have had actual notice as to support of this claim, they cite to several incidents these claims. When Ross' and Homas' claims were and witness statements, none of which this Court finds presented in June, 2008, Dillman promptly acted on the sufficient to establish actual knowledge on the part of allegations, resulting in I. Sanders' suspension in July, any University Defendant prior to Bernard's official 2008, and subsequent termination in October, 2008. complaint.

Therefore, for the reasons that follow, while we Plaintiffs first point to the deposition of former ESU find that there are triable issues of fact as to police officer Randy Nelson. (Doc. 107–2, at 45). whether each Plaintiff was subjected to quid pro According to Nelson, other officers told him that I. quo sexual harassment, these issues are insufficient Sanders was gay and related to him an incident that to allow Plaintiffs to survive summary judgement. occurred prior to 2004 wherein I. Sanders was found Bernard, Ross, and Homas must still demonstrate in a car on a dark part of campus, late at night, with deliberate indifference and actual knowledge on the another man. 7 (Dep. of Randy Nelson, at 35–38; Stmt. part of an appropriate person, specifically Dillman, in of Randy Nelson, at 5). The mere fact that I. Sanders order to succeed on their Title IX claim. However, was in a car with another man cannot impute any Plaintiffs' fail to show any triable issues that University level of knowledge to the University Defendants that Defendants had actual knowledge of I. Sanders' alleged I. Sanders was engaging in sexual harassment of male sexual misconduct prior to Bernard's official complaint students. and that, upon receiving the complaint, their response was one of deliberate indifference. As to Homas 7 Plaintiffs erroneously state that I. Sanders was and Ross, summary judgment must be entered for found with a “male student.” There is no evidence the University Defendants because when they were in Officer Nelson's statement or deposition to provided actual notice of these plaintiffs' complaints of support this contention. At most, Officer Nelson sexual harassment at the hands of I. Sanders, there was stated that the police “were trying to confirm a virtually immediate response resulting in I. Sanders' whether [I. Sanders] was in this car with a suspension in July, 2008, and termination in October, student.” (Stmt. of Randy Nelson, at 5). The 2008. statement does not say whether or not this was confirmed and Officer Nelson's deposition regarding this incident only refers to the other person in the car as “the other male.” (Dep. of 2. Actual Knowledge Randy Nelson, at 35).

*20 Here, the University Defendants do not dispute Plaintiffs also state that Dent “admitted that he that East Stroudsburg University receives federal was aware of I. Sanders' long standing history of financing assistance and is subject to Title IX's sexual misconduct with students.” 8 (Doc. 107–2, at requirements. (Doc. 102, at 17). I. Sanders, as Vice– 4546). Dent's statement details his relationship with President for Advancement at ESU, head of the I. Sanders, and his eventual discovery of I. Sanders' Advancement Office, and the CEO of the ESU bisexuality or homosexuality. Arguably, the most Foundation, reported to Dillman and the Chair of probative statements that Dent made that could be used the University Foundation Executive Committee. to indicate that Dent had prior knowledge of a history (Doc. 94, ¶¶ 7, 8). Therefore, as President of the of sexual misconduct on the part of I. Sanders are University and I. Sanders' supervisor, Dillman clearly that “Dr. Sanders would often meet with grad students had the authority to take corrective measures on the in his office behind closed and locked doors,” that University's behalf. “it was not uncommon for Dr. Sanders to go out to

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 16 Bernard v. East Stroudsburg University, Slip Copy (2014) lunch or even dinner with these students” and that never been made aware of any student complaints “there did come a time when [Dent] became aware against I. Sanders prior to the phone call by V. that something was not quite right.” (Stmt. of Vincent Sanders on August 26, 2007. (Doc. 102, at 21– Dent, at 2). However, Dent also stated that “none of 22). The hiring of “young African American males the students ever came to [him] with any concerns outside of the university guidelines” is not indicative of about Dr. Sanders” and admitted that he told Breese “improper conduct with students.” Nor can these hiring that he “had not witnessed any inappropriate behavior practices be reasonably construed as indicative of between Dr. Sanders and Frantz as [he] had not.” (Id. sexual misconduct. At best, as Bolt stated, I. Sanders' at 3, 5). Dent's statements are therefore far cries from hiring practices may have been suggestive of “a double any evidence that he “was aware of I. Sanders' long standard for people of different colors.” (Dep. of standing history of sexual misconduct with students,” Carolyn Bolt, at 80). or even that he had any knowledge of sexual acts taking place between I. Sanders and his students. 9 Finally, Plaintiffs assert that “I. Sanders had developed a reputation for engaging in inappropriate sexual relationships with students he employed in the 8 While Plaintiffs' cite to Dent's Statement, p. 2, Advancement Office.” (Doc. 107–2, at 46). As it is not clear to what part of this page they such, Plaintiffs point to stories circulating in the are referring. However, the Court will look to the entirety of Dent's statement for support of Advancement Office that “I. Sanders was running a Plaintiffs' contention. ‘sex-ring’ involving international students going back to 2003” and that these stories had reached employees 9 Even if Dent's statements could be construed to in other offices, including Bernard's then-girlfriend indicate a prior knowledge of sexual misconduct, Omwenga. (Id.). This argument raises multiple issues. I. Sanders was Dent's supervisor so that it does First, there is no evidence that I. Sanders actually not appear on the record evidence that Dent did run a ‘sex-ring’ or what specific activity, if was an “appropriate person” for the purpose of any, occurred. Werkheiser, to whose deposition and compliance with the “actual notice” requirement. verified statement Plaintiffs cite to support this Furthermore, there is no indication that Dent did tell, or attempted to tell, anyone of any concerns contention, stated that she “was told in 2006 by that he may have had. Therefore, it is impossible Vicky Cooke, assistant to Isaac Sanders before Laurie to impute any possible knowledge that he may Schaller that a custodian at ESU, knew and told have had to any of the University Defendants. her that Sanders was running a ‘sex ring’ involving international students back in 2003 or so.” (Stmt, of *21 “Most importantly” to the Plaintiffs is their Teresa Werkheiser, at 4). Furthermore, in response assertion that; to a question regarding her understanding of Cooke's Dillman was personally aware statement as to what I. Sanders was doing, Werkheiser of I. Sanders' improper conduct merely responded that “I didn't really—. I mean, it's with students as early as 2006 ... kind of self-explanatory with the word in it and, you [and] was told by numerous know, some kind of ring. I really didn't know any individuals, including senior details or anything....” (Dep. of Teresa Werkheiser, at staff members Bolt and Kelly 26). Second, Werkheiser's statement is unsubstantiated (sic), and then head of Human double hearsay at best. Third, absent any testimony Resources McGarry that I. from Omwenga, it is impossible to know what she Sanders was hiring unqualified specifically heard or knew. Moreover, she was under young African American males no duty to report such rumor-like statements to her outside of the university supervisors and it does not appear that she did so. guidelines. Finally, Plaintiffs present no evidence that, even if these rumors were circulating in the office, Dillman (Doc. 107–2, at 46). This statement does not present ever heard or was aware of the stories, or that it is a sufficient denial or dispute of fact as to the even plausible to infer that unsubstantiated rumors can University Defendants' assertion that Dillman had amount to notice for Dillman.

I. Sanders' sexual improprieties, was aware that there *22 In turn, University Defendants contend that the was an investigation pending against I. Sanders, first time ESU became aware of a charge of harassment and had heard other rumors about the Anonymous against I. Sanders was on August 23, 2007. (Doc. 102, Letters ... [and] also heard rumors on campus that I. at 21). It is undisputed that on this evening, Attorney Sanders had been stopped by the police ... and was Murray contacted ESU professor, Dr. Donna Hodge, to found with a man”, there is no genuine issue of fact set up a meeting regarding Bernard's allegations, and that Borland actually knew of any sexual harassment that, on this same evening, Hodge subsequently asked by I. Sanders, until early-January, 2008, at the earliest. V. Sanders to attend this meeting. (Doc. 94, ¶ 28). It (Doc. 102, at 22; Doc. 109, ¶ 120). There is an absence is further undisputed that this was the first time that of any genuine issue of fact as to the University V. Sanders had heard of Bernard's complaint and that Defendants' assertion that Dillman, V. Sanders, and she did not notify Dillman about Bernard's allegation Borland, were not aware of any sexual harassment until August 26, 2007. (Id. at ¶¶ 28, 35). Given the by I. Sanders prior to August 23, 2007. The Court fact that neither of the other plaintiffs, A. Ross and determines that while the fact as to the timing of the Homas, or the dismissed Plaintiffs, Brown, Salter, and University Defendants' actual knowledge is material, Murray, came forward with their allegations prior to Plaintiffs have not put this fact at issue. August 23, 2007, Bernard's complaint is indisputably the first official allegation of sexual harassment against I. Sanders by an ESU student. 3. Deliberate Indifference

University Defendants assert that before her *23 Plaintiffs have also failed to present any genuine conversation with Hodge, V. Sanders had not been issue of fact as to the University Defendants' assertion aware of any student complaints of sexual harassment that they were not deliberately indifferent to Plaintiffs' by I. Sanders. (Doc. 94, ¶ 29). Plaintiffs assert allegations. (Doc. 102, at 17–28). The parties put at that “Plaintiff, Anthony Ross, states that Victoria issue whether (1) ESU's response to the plaintiffs' Sanders' son, Lorenzo Sanders, who was a student allegations caused the plaintiffs to be subjected to at the University probably knew what was going on further harassment and inappropriate conduct after since he was friendly with another victim, Dejean August 2007, and (2) the adequacy of the investigation Murray.” (Italics added). (Doc. 109, ¶ 29). Plaintiffs conducted by Breese, and the reasons for Dillman's further state; “In addition, it was well known on dismissal of Bernard's complaint. campus that I. Sanders repeatedly engaged in improper sexual conduct with ESU students.” (Id.). These statements do not present a proper and sufficient a. Whether Plaintiffs were subjected to further denial of, nor create a triable issue of fact as to, the harassment and/or inappropriate conduct after University Defendants' assertion that V. Sanders, prior August 2007. to speaking with Hodge, was not aware of any student If the intentional acts of discrimination have ceased complaints of sexual harassment by I. Sanders. “by the time a supervisory employee ... learns of it, there is no liability in a private suit for that Consequently, Plaintiffs have failed to present a triable conduct based on some personal failure to take ‘proper issue of fact as to the University Defendants' assertions remedial action’ thereafter,” Rosa H., 106 F.3d at that Dillman had never been made aware of any student 661. In response to University Defendants' contention complaints against I. Sanders prior to the phone call by that “nothing ESU did or failed to do subjected V. Sanders on August 26, 2007, and that V. Sanders the plaintiffs to further discrimination,” Plaintiffs had no knowledge of sexual harassment by I. Sanders argue that Dillman's failure to place I. Sanders on of any ESU students prior to the phone call from Hodge administrative leave, or take other action against on August 23, 2007. Further, while the exact time him prior to his dismissal, allowed I. Sanders to that Borland became aware of Bernard's allegations is continue his inappropriate conduct. 10 In support of in dispute, aside from Plaintiffs' broad assertions that this argument, Plaintiffs briefly detail allegations of Borland “knew of allegations and rumors regarding contact and inappropriate conduct between Plaintiffs

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 18 Bernard v. East Stroudsburg University, Slip Copy (2014) and I. Sanders. In regard to A, Ross, Plaintiffs point an accident [sic ],” and Bernard's belief that to the undisputed fact that I. Sanders paid Ross' tuition “the threat was coming from I. Sanders, Dent's without his knowledge or consent. (Doc. 107–2, at daughter or someone else connected with the 47). I. Sanders also attempted to hug Ross on May case.” (Doc. 109, ¶ 45; Dep. of Frantz Bernard, 30, 2008, and contacted Ross via phone calls and at 183). text messages through October, 2008. 11 (Id. at 47– Plaintiffs' reliance on these incidents is insufficient to 48). Plaintiffs also contend that in 2009, I. Sanders put at issue University Defendants' assertion that their approached Homas and his son at a mall, stood close actions, or inactions, did not cause Plaintiffs to suffer to him, and, laughing, tried to touch Homas. (Id. at further harassment. 48). Finally, Plaintiffs argue that evidence has been presented that after Bernard filed his complaint, I. Post–August, 2007, with the exception of I. Sanders' Sanders, Dillman, and other persons associated with I. payment of A. Ross' outstanding bill, each incident alleged by Ross occurred after he had officially Sanders, attempted to intimidate him. 12 graduated. Ross graduated May 9, 2008. (Doc. 94, ¶ 13). I. Sanders attempted to hug Ross, albeit on 10 Plaintiffs broadly assert that ESU and Dillman campus, on May 30, 2008, and called him in July failed to take any action against I. Sanders and October of 2008. Furthermore, I. Sanders had “until more than a year after Bernard formally been placed on leave at the time of the two phone complained of harassment.” (Doc. 107–2, at 48). calls, Given that Title IX protects against exclusion This is a misleading statement. ESU conducted from participation in, or the denial of the benefits of an investigation immediately upon receiving any education program or activity receiving Federal Bernard's complaint. The adequacy of this investigation is discussed later in the opinion. financial assistance, a person no longer enrolled at ESU cannot be considered to fall within its protections. 11 There is no evidence in the record that I. Sanders Additionally, the University suspended I. Sanders in texted A, Ross after August 2007. However, July 2008 and specifically instructed him not to have the University Defendants acknowledge that I. any contact with any university employee or student; Sanders did (1) attempt to hug Ross when Ross therefore there is no evidence that the University could went to I. Sanders' office to pick up a reference have taken any further actions to prevent I. Sanders from him in May 2008; (2) left a message on 13 Ross” cell phone in July 2008; and (3) called Ross from contacting Ross. in October 2008, although it is unknown whether or not he left a message, and If he did so, the 13 In response to University Defendants' Statement contents of that message. (Doc. 120, at 14–15). of Material Facts, wherein they state that “In Plaintiffs fail to mention the attempted hug by I. late May 2008, Isaac Sanders tried to hug Ross, Sanders in their Response to Defendants' Motion but Ross pushed himself away” (Doc. 94, ¶ for Summary Judgment, in relation to the Title IX 137), Plaintiffs inexplicably “den[y] as stated” argument, but the Court assumes that they would and proceed to enumerate each of I. Sanders' intend that this incident be considered as possible alleged sexual acts and harassment against Ross, evidence of inappropriate conduct and contact. the large majority of which occurred prior to Bernard's official complaint. (Doc. 109, ¶ 137). 12 While each “[attempt] to intimidate [Bernard]” Even more misleading is Plaintiffs' failure to is not specifically stated in this portion of include dates for any of the enumerated incidents Plaintiffs' brief, the Court interprets the statement that occurred prior to Bernard's allegations, in as refening to Bernard's allegations that in an apparent attempt to show misconduct by I. November 2007, I. Sanders, from afar, “made Sanders after August, 2007. Nonetheless, the some gesture to throw up his hands and look over Court interprets Plaintiffs' “denied as stated” to his glasses” while looking at Bernard, Defendant actually be an admission of Defendants' simple Dillman glared at Bernard when he saw Bernard and straightforward statement. in a campus store during the investigation, a July of 2008 phone call wherein Bernard received a death threat on his cell phone “from what I. Sanders paid A. Ross' outstanding $811 bill to sounded like an African–American man with the University in September, 2007. University

Defendants argue that this does not constitute Bernard argues that Defendant Dillman glared at him harassment because Ross did not discover that the and that I. Sanders “made some gesture to throw payment had been made until August, 2008. By up his hands and look over his glasses” from afar, this time, Ross had already graduated. This isolated and that these statements present issues of fact as to payment, without more, is insufficient to establish whether Bernard was subjected to further harassment further harassment. As University Defendants state, or inappropriate conduct. However, as a matter of law, “while Ross may have justifiably resented Sanders these isolated incidents cannot be deemed sufficient for paying [the bill] without his knowledge, it can to create a genuine issue for trial to demonstrate hardly be considered sexual harassment.” (Doc. 120, retaliation and/or harassment. I. Sanders did not at 16). approach Bernard or attempt to speak with him in *24 I. Sanders' interaction with Homas in 2009 any way. There is no allegation that I. Sanders was also fails to offer any factual support for Plaintiffs' following Bernard. As for Dillman, he stated that arguments. The incident occurred off campus and I. in August, 2007, he “didn't know who [Bernard] Sanders was no longer employed by ESU at that time. was.” (Dep. of Robert Dillman, at 52). There is no It also occurred after Homas had been awarded his indication in the record that he ever met Bernard prior Masters degree. Therefore this event was completely to his final decision in January, 2008. Further, the outside of the University's control. statement that Dillman “glared at Bernard” does not carry with it a sufficient basis to infer that Dillman Bernard's allegation regarding a death threat in July, knew the identity of the person to whom he directed 2008, fails in two respects. First, Bernard said that the what Plaintiffs characterize as a glare. call: Plaintiffs have failed to identify any discriminatory sounded like a African man has conduct after August, 2007, of which University threaten me (sic ) but because Defendants had actual knowledge that could constitute the mans (sic ) accent was sexual harassment. Therefore, Plaintiffs have not heavy and the reception was demonstrated any material issues of fact as to the bad I could hardly hear what he existence or causation of any injuries as a result of was saying. To me it sounded alleged deliberate indifference. like “death is coming your way” I said “what” and he said the same thing over and then hung b. Whether the investigation conducted by Breese, up. and Diliman's reasons for dismissing Bernard's complaint, were adequate. (Doc. 95–4, Ex. 9). Bernard also admitted that It could *25 University Defendants detail the affirmative have been a crank call.” (Dep. of Frantz Bernard, at steps that V. Sanders, Dillman, and Breese took to 289). Given that Bernard could not relate the contents address Bernard's complaint (Doc. 102, at 24–26): of the call with any certainty, and has not presented an investigation was begun soon after the initial any evidence that the call is attributable to Dillman, complaint was filed, and Breese interviewed Bernard I. Sanders, or anyone related to them, or that the call on August 28, 2007; Bernard was placed in a new has any relationship to Bernard's complaint or the work-study position in the Media Communications University's actions, the phone call's connection to Department (Id.); 14 Breese notified I. Sanders of this case presents nothing more than mere speculation. the allegations, obtained his written responses, and Second, the call took place after I. Sanders had allowed Bernard to read and comment on I. Sanders' been placed on leave from the University and told responses to the allegations; Breese interviewed I. not to contact any university student or employee. Sanders as well as all witnesses identified by Bernard Consequently, there is no evidence that University 15 Defendants could have taken any action to prevent or I. Sanders; and Breese sent a copy of his this threatening call, if it did indeed originate from I. draft report to Lehman in November, 2007, and Sanders, an assertion without any basis on the record. allowed Bernard and I. Sanders to review it and make comments which Breese subsequently incorporated

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 20 20 Bernard v. East Stroudsburg University, Slip Copy (2014) into the final report prior to sending it to Dillman. relevant information about the case; 18 and Breese (Doc. 102, at 25–26). The University Defendants was not provided with any of the anonymous letters further state that upon learning of a local newspaper sent to ESU and its Trustees. (Doc. 107–2, at 49–50). article in June, 2008, identifying five former students Furthermore, Plaintiffs contend that Breese's failure claiming that I. Sanders had harassed them, ESU to comply with the express requirements of ESU's placed I. Sanders on administrative leave, gave I. Harassment and Discrimination Policy by not stating Sanders express written instructions that in the absence whether it was “more likely than not” that sexual of approval by Dillman or V. Sanders, he was not contact had occurred resulted in an inadequate final allowed on campus or to contact any university report. (Id. at 50). employee, student, donor, or potential donor, and hired an outside law firm to conduct an investigation, which 16 Plaintiffs broadly state that “Breeze (sic ) was led to a pre-disciplinary conference between Dillman strictly limited by V. Sanders and Lehman as to and I. Sanders, and ultimately I. Sanders' termination. who he could speak to, what evidence he could (Id. at 26). look into and even as to what questions he could ask.” While Plaintiffs subsequently list several 14 University Defendants' statement that they look specific allegations, in an attempt to address immediate steps to separate Isaac Sanders every argument reasonably encompassed within from Bernard” requires explanation, (Doc. 102, Plaintiffs' statement, the Court has referred back at 24). By the time that Bernard filed his to Plaintiffs' Counterstatement of Material Facts complaint, Bernard had already quit his job in the in their Memorandum of Law in Response to the Advancement Office. Motion for Summary Judgment of Defendants East Stroudsburg University (Doc. 107–2, at 15 Bernard also gave Breese Omwenga's name. 26–30), and supplemented the specific facts However, she refused to give a statement based, that it reasonably believes fall within Plaintiffs' at least in part, on her attorney's advice, statement. Plaintiffs do not deny University Defendants' 17 To clarify, Breese testified that “[V. Sanders] told assertions regarding the steps that the University took me that-and both her and Andy Lehman, I should prior to Dillman's final decision in January, 2008. say, both told me how to proceed. You know, Therefore, none of these facts are in dispute. Rather, ‘Bring in Frantz. Have him tell you exactly what the sufficiency of the investigation itself remains the took place. Take notes.’ “ (Dep. of Arthur Breese, only material fact at issue. at 15–16). 18 To establish that the University Defendants' In particular, the plaintiffs object to the omission of an email from I. Sanders to Bernard, depicting actions subsequent to Bernard's complaint were a stick figure with a gasoline pump in his rectum. inadequate, ESU's response must have been (Doc. 107–2, at 29). However, it is worth noting “clearly unreasonable.” Davis, 526 U.S. 649. Here, that this email was provided to Breese by V. Plaintiffs contend that the investigation was “clearly Sanders, not Bernard or I. Sanders. (Dep. of inadequate.” (Doc. 107–2, at 49). Plaintiffs point to Arthur Breese, at 37–38). 16 multiple facts in support of this argument: Breese *26 Analysing each of Plaintiffs' contentions in only interviewed Micah Ash, Vincent Dent, Bernard, turn regarding the sufficiency of the University's and I. Sanders; V. Sanders and Lehman directed investigation, it is clear that, while certain facts Breese how, and what to, investigate; 17 V. Sanders mentioned are material in an analysis to identify triable and Lehman limited the scope of the investigation by issues of deliberate indifference, none of these facts limiting Breese to the sexual harassment allegations have been controverted by Plaintiffs and/or reach and not permitting him to inquire into financial aspects the strict unreasonableness standard set forth by the of the case; Lehman reviewed and edited Breese's Supreme Court in Davis. questions prior to Breese's interviews; V. Sanders and Lehman limited the scope of Breese's investigation to The University Notice of Nondiscrimination, Bernard's specific complaint, causing Breese to omit instructing the Office of Diversity & Equal

Opportunity how to conduct an investigation into a to Bernard's claims. In Breese's Internal Investigation complaint, states that the investigation “at a minimum sent to Dillman, Breese acknowledged that I. Sanders shall include interviews with all complainants and stated that he “processed a grant for funds to be respondents.” (Notice of Nondiscrimination, at 10). transferred in the amount of $1000.00 to Bernard's There is no requirement that the Director, Breese in university account,” and gave Bernard money for food, this case, must interview other people, particularly prescription glasses, rent, and to have his car repaired. individuals not named by either Bernard or I. Sanders, (Internal Investigation Memorandum, Doc. 95–13, Ex. or undertake an investigation of his own as to 18, at 34). Therefore, Plaintiffs have not established other possible witnesses. In all of Breese's prior the extent to which, if any, a further investigation by investigations and reports, approximated at 20 to 25, he Breese into I. Sanders' financial transactions would had never interviewed anyone who was not a party to have provided additional probative information in the complaint, either as the complainant or the accused, relation to the sexual harassment allegations. or someone not identified by one of the parties to the complaint. (Dep. of Arthur Breese, at 142–143). There 19 In fact, in response to a question by I. is also no indication that the University has any other Sanders' attorney, asking whether Lehman interview procedures depending on the scope and/or “ever hinder[ed] or prevented] [Breese] from gravity of the matters under investigation. Therefore, performing [the] investigation”, Breese stated the decision to only interview Ash, Dent, Bernard, and that he did not. (Dep. of Arthur Breese, at 112– I. Sanders did not depart from the accepted procedures. 113). *27 Plaintiffs' contention regarding Breese's There is no dispute that V. Sanders and Lehman were omission of information purportedly relevant to the involved in the I. Sanders investigation. Plaintiffs raise case appears to revolve around the omission of an multiple issues regarding the conduct of V. Sanders email from I. Sanders to Bernard, depicting a stick and Lehman, including that they directed Breese how, figure with a gasoline pump in his rectum. (Doc. 107– and what, to investigate and limited the scope of the 2, at 29). This picture was originally mentioned by investigation by restricting Breese to only the sexual Bernard in his initial interview with Breese. (Doc. 95– harassment allegations, specifically only to Bernard's 13, Ex. 18, at 2). However, this email was provided complaint, causing Breese to omit relevant information to Breese by V. Sanders, not Bernard or I. Sanders. about the case. Breese stated that V. Sanders and (Dep. of Arthur Breese, at 37–38). Breese stated Lehman “both told me how to proceed. You know, that the reason the picture was not included in the ‘Bring in Frantz. Have him tell you exactly what took report was because “it was not presented to [him] by place. Take notes.” ‘ (Dep. of Arthur Breese, at 15– the respondent or the complainant” and that “it was 16). Breese also admitted that he felt V. Sanders was introduced by [his] supervisor, Victoria Sanders, and it controlling the investigation, step by step. (Id. at 32). was being addressed with her and Dr. Dillman.” (Dep. Further, it is undisputed that Breese was told not to of Arthur Breese, at 41, 113–114). The fact that investigate the financial aspects of the case and that a V. Sanders provided the picture to Breese undercuts separate investigation into financial improprieties was the plaintiffs' claims that V. Sanders was limiting supposedly taking place. However, Plaintiffs fail to the scope of Breese's investigation and withholding show how V. Sanders and Lehman's instructions were important information. Nor is there evidence in the inappropriate. There is no evidence that either person record how the inclusion of the picture in the final was acting in bad faith or attempting to influence report would have affected Dillman's final decision, Breese's investigation or findings, 19 nor that their given that Dillman was already aware of the picture. issuance of instructions was outside the scope of V. Sanders' and Lehman's duties. As to the separation It is once again undisputed that Lehman reviewed of financial and sexual allegations, Breese stated that Breese's questions. According to Breese, Lehman he was concerned about this limitation because some “went over the questions and some of them-he felt of Bernard's allegations could have been indicative as though he wanted to narrow them because he of quid pro quo sexual harassment. (Id. at 19). Yet, felt some of the questions were leading.” (Dep. of Breese did address the financial allegations pertinent Arthur Breese, at 16). In particular, Plaintiffs point

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 22 22 Bernard v. East Stroudsburg University, Slip Copy (2014) to Breese's testimony that, in response to a proposed to ESU and its Trustees. This fact does not raise the question for I, Sanders asking “Did you fondle the quality of the investigation to the level of a material complainant's genitals?”, Lehman emailed Breese that fact at issue. It is undisputed that letters received by “you can ask him if there was any contact b/w he ESU were forwarded to Lehman. At least some of these and the student but I would not ask him if he was letters were subsequently sent to the FBI for further fondling the student's genitals. You can also ask if he investigation. (Doc. 94, ¶ 99; Doc. 109, ¶ 99). 20 ever had physical contact with Franz (sic ) at any time, Therefore, while Plaintiffs may contend that Breese and, if so, when.” (Doc. 95–20, Ex. 9). What Plaintiffs was denied access to these letters, the University fail to state is that in Lehman's email in response to Defendants cannot be said to have been hiding the Breese's proposed list of questions, not only is this letters or attempting to suppress their contents. the only question that Lehman recommends should be changed, but Lehman actually provides additional 20 Plaintiffs deny that every letter was sent to the questions for Breese to ask I. Sanders, Ash, and Dent. FBI, although they fail to specify which letters In any event, Lehman's suggested restructuring of this were or were not sent. (Doc. 109, ¶ 99). single question plainly was directed at developing a full account from I. Sanders by beginning with the Of the five letters that Plaintiffs offer into evidence, broadest possible inquiries into I. Sanders' conduct. and specifically address in Dillman's deposition, the last three are virtually identical. 21 (Doc. 95–13, Ex. Plaintiffs' reliance on Breese's failure to comply with 9–13). The first letter in question, dated September the express requirements of ESU's Harassment and 28, 2007, only addresses allegations against Dent, Discrimination Policy by not stating whether it was and “suggest[s] that [Dillman] advise Sanders 22 of “more likely than not” that sexual contact had occurred this letter ONLY after [Dillman] ha [s] verified as evidence of an inadequate final report, is unavailing. the contents” of the letter. (Doc. 95–13, Ex. 9) The nondiscrimination policy states that “the findings (capitalization in original). According Plaintiffs every shall indicate whether it was more likely than not benefit of the doubt, this letter is still not material to a that a violation of this policy occurred.” (Notice of deliberate indifference analysis. The second letter also Nondiscrimination, at 10). By its terms, the policy pre- revolves around financial allegations, although it also supposes the investigator is able to make a finding. mentions rumors about I. Sanders. Nonetheless, the Breese stated in an email to Lehman that “as the neutral letter does not allege any form of sexual harassment investigator it is difficult to ascertain if anything or non-consensual sexual acts. Rather, it relies on the happened.” (Doc. 95–13, Ex. 16). In his deposition, fact that I. Sanders “was in a position of authority” Breese admitted that the situation amounted to a and had “gay liaisons with his students.” (Doc. 95– “he said/he said.” (Dep. of Arthur Breese, at 63). 13, Ex. 10). In response to why Dillman did not While Breese stated that he found “it hard to believe provide this letter to Breese, Dillman stated that “this that [Bernard] would come and report something that dealt with consensual relationships-gay bashing in my didn't happen,” he did not tell Dillman or V. Sanders viewwith no complaints, no names, no indications of that he found Bernard to be credible. (Id. at 83– the substance, and Arthur Breese had a document in 84). Breese's statement to Lehman, his deposition front of him by a legal supported person who went to testimony, and the report itself, establish that Breese his office and talked about sexual harassment.” (Dep. did not find that a violation of the nondiscrimination of Robert Dillman, at 87). policy was more likely than not. Therefore, the failure to make a finding “whether it was more likely than 21 The difference between the three letters is not that a violation of this [non-discrimination policy] minimal. The fourth and fifth letters are copies of occurred,” is essentially tantamount to a statement that the third letter, with the exception of who is listed it is more likely than not that the violation did not as the recipient, and a brief introduction to each occur. recipient asking for their help. (Doc. 95–13, Ex. 11–13). *28 Dillman, V. Sanders, and Lehman, did not 22 provide Breese with any of the anonymous letters sent I. Sanders' name is mentioned several times throughout the letter, but only in the context of

his position as Dent's supervisor. Further, at the about Isaac and there wasn't anything in the Stroud end of the letter, the author stated that he/she Regional about Isaac,” Dillman ended his inquiry. “[has] no doubt that Sanders is doing a decent (Id. at 100–101). job.” (Doc. 95–13, Ex. 9, at 2). ESU also had a policy not to accept anonymous The third, fourth, and fifth letters are the most helpful letters, and “if the complainant or the individual, the to Plaintiffs' argument. The most important passage for respondent, did not come forward [the investigator] the purposes of Plaintiffs' claim states: did not include them in [his/her] internal investigation reports.” (Dep. of Arthur Breese, at 112). Nonetheless, People are disgusted with those who use their Breese stated that had he seen the letters, he would positions to gain sexual favors from young people have conducted his investigation differently, including (even if they are slightly over 18). trying to “seek, find out who wrote them ... and then [he] would have asked different questions of Isaac As you no doubt now know, this young man was and Vincent [Dent].” (Id. at 145). He also would have one of many. You can easily find the others (another addressed these letters with V. Sanders and Lehman. group on campus has identified four students so far). (Id.). Run through the list of graduate assistants that he has had over the years. He picked them with a purpose. Even taking into account Breese's statements regarding It was not a one-time event as he may have led you to conducting his investigation differently had he believe. He is a full-fledged predator. So your cover- received some, or all, of the anonymous letters, and up of his arrest now is seen as so very wrong. We Dillman's decision not to provide Breese with any are sure that word of the other young man (under 18 of the letters, these do not raise a triable issue of when propositioned by Sanders) who came forward deliberate indifference on the part of the appropriate has not reached your ears or you would have taken person, i.e. Dillman. Ultimately, Plaintiffs cannot deny some decisive action. This boy was also a student, the fundamental fact that Dillman was the decision- so Sanders' sexual misconduct in (sic ) a matter of maker and person with the appropriate authority to concern to the University. take remedial measures. When presented with the (Doc. 95–13, Ex. 11). Dillman addressed allegations anonymous letters, Dillman took action within a within this letter that concerned him with Chief reasonably short period of time to investigate the more concrete allegations, such as I. Sanders' possible Olson. 23 In their conversation, Dillman recalls arrest, as well as forwarding the letters to the FBI. As with the picture of the stick figure, Dillman was 23 It is unclear whether this letter was the specific already aware of the letters when he received Breese's trigger for Dillman's conversation with Chief final report. There is no evidence in the record that Olsen. However, Dillman stated that he made this Breese's knowledge or possession of the letters, and inquiry “roughly around the time of this and- their inclusion in the final report, might have affected yeah, I would have thought that this would have Dillman's final decision in any way, triggered something.” (Dep. of Robert Dillman, at 100). For the Court to draw the legal inference that *29 want[ing] to know whether there was any truth Plaintiffs suggest, namely that Dillman had motive to whether there was something going on on the or intent to frustrate Breese's investigation and/or campus and ... askpng] [Olson] if he had anything on bring about a false conclusion regarding Bernard's record of anything that occurred on campus .... [and] claims, the plaintiffs would have to come forward with if he could determine by talking to his counterpart evidence showing genuine issues for trial as to each in the Stroud Regional whether there was anything of the elements necessary to establish a finding of that would be an indication that this letter had deliberate indifference. See Davis, 526 U.S. at 644– some real substance to it because it cites in here 645; Anderson, 477 U.S. at 248 (stating that “only that the-that Isaac was somehow caught.... (Dep. of disputes over facts that might affect the outcome of Robert Dillman, at 99). After being told that there the suit under the governing law will properly preclude was “nothing on the local police, campus police, the entry of summary judgment. Factual disputes that

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 24 24 Bernard v. East Stroudsburg University, Slip Copy (2014) are irrelevant or unnecessary will not be counted. This unlimited investigation, extending well beyond the materiality inquiry is independent of and separate from Bernard allegations against I. Sanders themselves, the question of the incorporation of the evidentiary the University Defendants have been deliberately standard into the summary judgment determination. indifferent. This ignores the “clearly unreasonable” That is, while the materiality determination rests standard that must be adhered to in any determination on the substantive law, it is the substantive law's of the validity of the recipient's response to the identification of which facts are critical and which harassment. Davis, 526 U.S. at 658. This standard is facts are irrelevant that governs.” (Internal citations aptly stated in Baynard, where the Court, citing the omitted)). Plaintiffs offer the affidavit and verified Supreme Court's decision in Farmer v. Brennan, stated statement of Charmaine Clowney 24 in support of that “ ‘deliberate indifference describes a state of mind their contention that Dillman acted with improper more blameworthy than negligence’ but ‘is satisfied motivation. Specifically, Plaintiffs point to a March by something less than acts or omissions for the 15, 2009, article in the Pocono Record, wherein very purpose of causing harm or with knowledge that Clowney is quoted stating that V. Sanders “said harm will result’. Indeed, a supervisory official who that the purpose of EEO policy was to protect responds reasonably to a known risk is not deliberately faculty and administration from being subject to indifferent even if the harm is not averted.” Baynard, student complaints,” and that V. Sanders “explained 268 F.3d at 236 (quoting Farmer v. Brennan, 511 to [Clowney] that that ESU administration wanted U.S. 825, 835, 844, 114 S.Ct. 1970, 128 L.Ed.2d 811 to prevent Dillman from receiving another vote of (1994)). Plaintiffs' argument has no support in the no confidence from the faculty.” (Doc. 110–31, Ex. case law developed in the implementation of Title IX's I). These statements do not specifically indicate a prohibition against discrimination. Therefore, drawing connection with Bernard's claim or the subsequent all reasonable inferences in favor of the plaintiffs, investigation, and there is no indication as to when Plaintiffs have failed to create a genuine issue of V. Sanders allegedly made these remarks. Therefore, material fact that the University Defendants acted with the statements lack the requisite level of specificity deliberate indifference. needed to raise a triable issue of material fact as to whether Dillman's treatment of the investigation could constitute deliberate indifference. 4. Conclusion

24 While Plaintiffs do not reference Clowney's For the reasons set forth above, the Court will statements until addressing Count II of the grant University Defendants' Motion for Summary Second Amended Complaint, regarding their § Judgment on Plaintiffs' Title IX claim due to Plaintiffs' 1983 claim, Clowney's assertions are equally failure to present any genuine issues of material fact relevant here. on the actual knowledge or deliberate indifference *30 In addition to all of the above, it must be noted elements necessary to establish a Title IX claim. that the University Defendants followed the Notice of Nondiscrimination handbook, detailing the necessary steps to be undertaken by the Office of Diversity & B. Count II–42 U.S.C. § 1983 Equal Opportunity when conducting an investigation. The plaintiffs only point to Breese's omission of To succeed on a claim under 42 U.S.C. § 1983, the “more likely than not” language in an attempt the plaintiff must demonstrate a violation of a right to show a violation of the University's investigation protected by the Constitution or laws of the United policies. Further, even assuming Plaintiffs are correct States, committed by a person acting under color of that the investigation was less thorough than it state law. Nicini v. Morra, 212 F.3d 798, 806 (3d could or should have been, the absence of a more Cir.2000) (en banc). Therefore, in evaluating a § 1983 aggressive course of action is not in itself indicative claim, a Court must first “identify the exact contours of deliberate indifference. See Escrue, 450 F.3d at of the underlying right said to have been violated” 1155 (quoting Vance, 231 F.3d at 260). Plaintiffs are and determine “whether the plaintiff has alleged a essentially arguing that in the absence of a virtually deprivation of a constitutional right at all.” Id. (citing

County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed. 1043 (1998)). As applied in a case such as the one currently before this 1. Contemporaneous and Personal Knowledge Court, under the Due Process Clause, the “contours” of a student's right to bodily integrity encompass the In addressing Plaintiffs' § 1983 claim, University student's right to be free from sexual assaults by his Defendants renew their arguments that V. Sanders teachers. Stoneking v. Bradford Area School Dist., 882 first learned of sexual harassment allegations against F.2d 720, 727 (3d Cir.1989). I. Sanders on August 23, 2007, that this was the first time any University Defendant had actual knowledge *31 Respondeat superior cannot be the sole basis for of possible sexual misconduct, and that no further supervisory liability. Andrews v. City of Philadelphia, harassment took place after this time. (Doc. 102, at 895 F.2d 1469, 1478 (3d Cir.1990) (citing Rizzo 36). In turn, Plaintiffs allege that ESU Defendants v. Goode, 423 U.S. 362, 377, 96 S.Ct. 598, 607, “misstate” the time at which Dillman knew about 46 L.Ed.2d 561 (1976)). There must be affirmative I. Sanders' improper conduct, and that Defendants conduct on the part of the supervisor that contributes “falsely state” that the harassment of the three to the discrimination. Id. Inaction and insensitivity plaintiffs ended before Bernard formally complained alone are not sufficient. Stoneking, 882 F.2d at 730 to V. Sanders. (Doc. 107–2, at 53). While the Court (citing Rizzo, 423 U .S. at 336–337). Therefore, a has already addressed these allegations in its analysis supervisor can be held personally liable under § 1983 of Plaintiffs' Title IX claims, supra, we will briefly do if he or she “participated in violating the plaintiff's so once more. rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” A.M. ex rel. J.M.K. v. a. Whether Dillman had knowledge of I. Sanders' Luzerne County Juvenile Detention Center, 372 F.3d improper conduct. 572 (3d Cir.2004) (citing Baker v. Monroe Township, *32 Plaintiffs claim that Dillman “had personal 50 F.3d 1186, 1190–1191 (3d Cir.1995)). Furthermore, knowledge of I. Sanders' improper conduct with the supervisor must have “contemporaneous, personal students as early as 2006.” (Doc. 107–2, at 53). In knowledge” of the violation and acquiesce in it, support of this proposition, they cite to testimony Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005). and statements by McGarry, Bolt, Werkheiser, and Bernard. The portions of the record to which Plaintiffs Consequently, to establish supervisory liability for point for support from McGarry's and Bolt's statements a subordinate's violation of a student's constitutional solely reference problems that each woman noticed, right to bodily integrity, the plaintiff must show or had heard, in regard to I. Sanders' hiring and that “(1) the defendant learned of facts or a pattern management methods. 25 While these contentions, and of inappropriate sexual behavior by a subordinate Dillman's knowledge of these allegations, can form pointing plainly toward the conclusion that the the basis for an assertion that Dillman was aware of subordinate was sexually abusing the student; and management problems in the Advancement Office, (2) the defendant demonstrated deliberate indifference they do not indicate that I. Sanders' practice of hiring towards the constitutional rights of the student by “minority candidates that may not [be] otherwise failing to take action that was obviously necessary to qualified” equates to improper sexual conduct, and prevent or stop the abuse; and (3) such failure caused more specifically, that the statements and allegations a constitutional injury to the student.” Chancellor gave Dillman notice of I. Sanders' sexual harassment v. Pottsgrove School Dist., 501 F.Supp.2d 695, 709 and/or assaults of students. (E.D.Pa.2007) (citing Doe v. Taylor Ind. School Dist., 15 F.3d 443, 454 (5th Cir.1994) (en banc)); 25 Bolt states that I. Sanders would hire the students see also Alton v. Texas A & M University, 168 and “it was kind of a mystery to [her]” how the F.3d 196 (5th Cir.1999) (applying this three pronged students were hired and that she told Dillman analysis to determine whether a university official had that there “was a double standard for people supervisory liability). of different colors” in the Advancement Office,

which caused low morale. (Dep. of Carolyn Bolt, no indication that Dillman ever heard or was aware at 28, 80–81). Plaintiffs also rely on an email of these stories, and it is not plausible to infer that that McGarry sent Dillman, detailing I. Sanders' unsubstantiated rumors can impute notice to Dillman. approach to the hiring process and indicating that he was intimidating people, pressuring staff Even if the Court subscribes to a theory that to “recommend minority candidates that may establishing supervisory liability under § 1983 requires not [be] otherwise qualified,” that his employees a marginally lower standard of notice than Title were concerned about retaliation if they were not 26 loyal to I. Sanders, and that he “[had] made subtle IX, Plaintiffs have failed to meet their burden to comments to [employees] about being racist, refute University Defendants' assertion that they were when they [did] not do as he wishe[d].” (Dep. of unaware of any sexual harassment by I. Sanders prior Susan McGarry, Ex. 1). to August 23, 2007. See Baynard, 268 F.3d at 238 Werkheiser's and Bernard's deposition testimony cited (stating that while Defendant could not be held liable by Plaintiffs is equally unconvincing to support under Title IX because there was “no evidence in Plaintiffs' contentions regarding when Dillman had the record to support a conclusion that [Defendant] notice. Plaintiffs once again point to Werkheiser's was in fact aware that a student was being abused,” statements regarding I. Sanders' involvement in a the defendant “certainly should have been aware of sex-ring. (Dep. of Teresa Werkheiser, at 24–29). the potential for [sexual] abuse, and for this reason Furthermore, Bernard claimed that after he told was properly held liable under § 1983.” (Italics in Omwenga about the incident in the car; original)). Here, allegations of inappropriate hiring practices, low office morale, and rumors regarding She mentioned to me that Doctor Sanders did seem possible consensual sexual relationships between I. kind of funny which was an implication to the fact Sanders and students, do not show that the potential for of his sexual orientation that he might have been sexual abuse was present and are insufficient to show bisexual or gay or whatever you want to call it. that Dillman had any form of notice of sexual abuse or of its potential existence. She also told me rumors about him being with other possible students. 26 Plaintiffs do not argue that a lower standard She told me I believe she thought [Pryor] was applies. However, in the interest of giving attractive, but she may have found out that him and Plaintiffs every benefit, the Court finds it useful Doctor Sanders had a thing or something ... to evaluate Plaintiffs' claims under such a theory.

(Dep. of Frantz Bernard, at 250–251). When asked to b. Whether the harassment continued after Bernard define “a thing,” Bernard stated that “it could have filed a formal complaint been-I don't know, maybe a relationship of some *33 Plaintiffs repeat their assertion that “I. Sanders sort.... A sexual relationship of some sort or maybe an continued to press A. Ross to have an inappropriate occurrence happening sexually between them. I don't personal relationship through October 2008 and really know.” (Id. at 251). Bernard also admitted that attempted to intimidate Bernard and Salter to dissuade the way in which Omwenga characterized any possible them from following through with their complaints relationship between I. Sanders and both Homas and against I. Sanders.” (Doc. 107–2). As the Court has Pryor “was more like a rumor but ... consensual.” (Id. previously addressed A. Ross' and Bernard's alleged at 304). Bernard's characterization of Omwenga's harassment postAugust 2007 in its Title IX analysis, statements amounts to summaries of nothing more than supra, and dismissed the allegations as insufficient to unsubstantiated rumors of consensual relationships establish any discriminatory behavior by I. Sanders between I. Sanders and students. Plaintiffs present over which the University Defendants had control, we no evidence that either Werkheiser or Omwenga ever will only address Salter's allegations. conveyed these rumors to anyone else. Furthermore, neither Werkheiser nor Omwnega was under a duty to The plaintiffs argue that: report such rumor-like statements to a supervisor. Even if these rumors were circulating in the office, there is

standard under Title IX, both Plaintiffs and Defendants Dent contacted Salter in June renew the same arguments that the Court previously 2008 at I. Sanders' direction to analyzed in Section lll(A) (2), supra. Given that the attempt to coerce Salter into Court has already established a lack of knowledge revealing who had made the on the part of any University Defendant prior to allegations against I. Sanders. August 23, 2007, and the absence of any constitutional I. Sanders then tried to get violations to Plaintiffs' bodily integrity after Bernard Salter fired by making false and filed his official complaint, the only question of defamatory statements about material fact at issue is whether the University him and sent investigators to Defendants acquiesced in I. Sanders' violations. 27 intimidate him.

(Doc. 107–2, at 48, n. 14). 27 There is no question that University Defendants did not participate in violating the plaintiffs' right First, and most importantly, Salter graduated in 2006. to bodily integrity or direct I, Sanders to do so, By June 2008, Dent was no longer an employee at therefore the Court need not address this issue. ESU. Therefore, the University had no control over *34 To establish acquiescence, the Plaintiffs must Dent, and was no longer responsible for Salter. It show that University Defendants accepted, complied, is plainly unreasonable to suggest that ESU could or tacitly submitted to I. Sanders' actions. Plaintiffs be expected to take any action to prevent Dent raise the identical factual allegations as previously from contacting Salter. Nonetheless, in the interest of stated under the Title IX deliberate indifference completely addressing Plaintiffs' argument, it is worth analysis, 28 none of which the Court found to noting that while Salter did state that Dent called him, be factually material and/or sufficient to establish the entirety of the conversation appears to revolve deliberate indifference. Plaintiffs boldly assert that the around Dent's interest in whether Dejean Murray was allegations they put forth demonstrate that: planning on reporting I. Sanders, and if so, whether it was because Murray wanted money. (Doc. 95–30, Ex. 28 1, at 8–9). There is no evidence of attempted coercion. These include not putting I. Sanders on administrative leave prior to July, 2008; As to the investigator allegedly sent to intimidate “dismiss[ing]” Bernard's complaint; Dillman's Salter, this event occurred in July 2008, after I. Sanders “actual knowledge of I. Sanders' history of was put on leave, and Salter stated that he did not inappropriate activities with students”; I. Sanders “have any idea who this guy was,” including whether being found in a car with a man at night; the the investigator was working for the University or I. anonymous letters; V. Sanders “orchestrat[ing] Sanders. (Dep. of Jerry Salter, at 76). and “limiting” Breese's investigation”; and Clowney's affidavit and verified statement. (Doc. Therefore, Plaintiffs' contentions do not present a 107–2, at 53–55). genuine issue of material fact as to the University Defendants' assertion that no further harassment took after [Defendants] knew of I. Sanders' sexual place after Bernard filed his official complaint in assaults and harassment of Plaintiffs, Dillman, August 2007. Borland, and V. Sanders each engaged in numerous acts both individually and in concert with each other, that had the effect if not the purpose of covering up I. Sanders' improper actions with the Plaintiffs and 2. Deliberate Indifference other ESU students. There is no dispute that Plaintiffs have a Due Process (Doc. 107–2, at 55). Despite this conclusory right to be free from unjustified invasions of their statement, as previously established, Plaintiffs' have bodily integrity and that sufficient evidence exists to failed to provide evidence to support this argument. establish that I. Sanders may have violated this right. (Doc. 120, at 27). Because the standard for deliberate indifference under § 1983 remains the same as the

The only allegation that Plaintiffs raise which the have failed to show a triable issue of material fact as to Court has not yet addressed is in regards to Borland's the University Defendants' assertion that Dillman, V. actions. 29 Plaintiffs state that: Sanders, and Borland did not acquiesce in, or attempt to cover-up, I. Sanders' sexual misconduct.

29 This allegation was not previously addressed because it appears to be irrelevant to the claims of sexual misconduct. Nonetheless, in the interest of 3. Constitutional Injury addressing each of Plaintiffs' allegations, we will briefly dispose of the issue. *35 For the reasons discussed at length in Section III(A)(2), supra, even assuming that there was after concerns similar to those raised before and evidence sufficient to raise triable issues of fact as after the Bernard complaint were brought to to University Defendants' knowledge and deliberate Borland's attention while he was acting President, indifference, which the Court determined has not been he placed two of the complaining employees shown, there is no evidence of record that any Plaintiff (Bolt and Kelley) on administrative leave while suffered an injury in the relevant time period, i.e. after permitting I. Sanders to continue working, and August 2007. failed to investigate at all the information regarding I. Sanders' inappropriate conduct with students. (Doc. 107–2, at 55). Given Plaintiffs' mention of 4. Conclusion Bolt and Kelley, the Court can only infer that the “concerns” are in reference to I. Sanders' For the reasons set forth above, the Court will hiring and management practices. The manner grant University Defendants' Motion for Summary in which Borland handled allegations regarding Judgment on Plaintiffs' § 1983 claim due to Plaintiffs' personnel issues and disputes at the University, failure to present any genuine issues of material fact and how long he had been aware of complaints for trial. regarding I. Sanders' management style, do not allow for the inference that Borland engaged in any individual act, or in concert with any C. Counts III and IVConspiracy other University Defendant, to cover up sexual assaults and/or harassment. None of the complaints University Defendants also seek summary judgment by University employees alleged improper sexual on Counts III and IV of Plaintiffs' Second Amended activity on the part of I. Sanders. Furthermore, Complaint, which allege a conspiracy to violate § 1985 Plaintiffs do not elaborate on the contents of the on the part of I. Sanders, Dillman, V. Sanders, and “information regarding I. Sanders' inappropriate Borland, and conspiracy to violate § 1986 on the parts conduct with students.” The portions of Borland's of Dlllman, V. Sanders, and Borland. (See Doc. 28, at deposition to which Plaintiffs cite only discuss 51, 53). the lack of an investigation into staff members' complaints about I. Sanders' attitude and treatment Section 1985(3) does not create any substantive of them. (Dep. of Kenneth Borland, at 51–52, 81– rights, instead allowing individuals to enforce their 82). There is no direct or implied reference to a substantive rights against conspiring private parties. lack of investigation into any student allegations of Farber v. City of Paterson, 440 F.3d 131, 134 (3d sexual improprieties. Accordingly, whether Borland Cir.2006) (citing Marino v. Bowers, 657 F.2d 1363, conducted a thorough or timely investigation into I. 1371 (3d Cir.1981)). To state a claim under § 1985(3), Sanders' hiring and management practices does not a plaintiff must allege: raise an issue of material fact for trial as to whether Borland engaged in a personal or concerted effort to (1) a conspiracy; (2) motivated cover-up allegations of sexual misconduct. by a racial or class For the reasons previously stated in the Court's Title IX based discriminatory animus analysis, as well as those addressed here, the plaintiffs designed to deprive, directly

or indirectly, any person or investigation, (2) failing to class of persons to the equal place Sanders on administrative protection of the laws; (3) leave while the first two an act in furtherance of the investigation (sic ) were on- conspiracy; and (4) an injury going, 30 (3) failing to provide to person or property or the the anonymous letters (and deprivation of any right or other relevant evidence) to privilege of a citizen of the Breese but providing them to I. United States. Sanders, 31 (4) editing Breese's Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997); report prior to submitting it see Griffin v. Breckenridge, 403 U.S. 88, 102–103, to Dillman, and (5) turning 91 S.Ct. 1790, 29 L.Ed.2d. 338 (1971); see also the Borland investigation into Farber, 440 F.3d at 136 (stating that “defendants an attack on Bolt and Kelley must have allegedly conspired against a group that rather than an investigation into has an identifiable existence independent of the fact the allegations of I. Sanders' that its members are victims of the defendants' improper behavior. tortious conduct. This independent existence is necessary to preserve the distinction between two 30 Presumably Plaintiffs are referring to Breese's of the requirements of a § 1985(3) claim; that the investigation into Bernard's complaint and conspirators be motivated by class-based invidiously Borland's investigation into allegations by Bolt discriminatory animus and that the plaintiff be the and Kelley about management problems in the victim of an injury he or she seeks to remedy by means Advancement Office. of § 1985(3).”). 31 Dillman admitted that he showed I. Sanders “one of the letters” but was not sure if it To establish a conspiracy, there must be an agreement was the first or second letter. (Dep. of Robert or “meeting of the minds” and a concerted action. Dillman, at 90–91). As previously stated, the Capogrosso v. Supreme Court of New Jersey, 588 first letter only addressed allegations against F.3d 180, 185 (3d Cir.2009); Startzell v. City of Dent, and the second letter revolved principally Philadelphia, 533 F.3d 183, 205 (3d Cir.2008) around financial allegations, but did mention (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, rumors about I. Sanders although there were 158, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). no allegations of sexual harassment or non consensual sexual acts. There is no evidence that As a threshold matter, the Court cannot reach the I. Sanders received, or saw, any other letters. other elements necessary to establish a violation of (Doc. 107–2, at 57). The Court has already addressed § 1985(3) in the absence of evidence establishing each of these allegations in turn and need not an agreement or meeting of the minds among the do so again. Each of Plaintiffs' assertions is defendants to deprive Plaintiffs of their right to liberty. either immaterial, a mischaracterization, or a legal Here, Plaintiffs argue for the existence of conspiracy conclusion absent any evidentiary basis on the as follows: record. Plaintiffs' contentions essentially amount to questions as to the thoroughness and breadth of the *36 Plaintiffs have produced investigation. These issues alone do not indicate the a substantial body of evidence existence of a conspiracy or an invidious, intentional that I. Sanders, Dillman, purpose to discriminate between classes or individuals. Borland, and V. Sanders, all Specifically, none of these contentions presents state actors, acted together evidence of an agreement among the defendants to cover up I. Sanders to discriminate against African American males. sexual assault and harassment Therefore, on this record, Plaintiffs have not shown a of the Plaintiffs by (1) tightly orchestrating Breese's

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 30 30 Bernard v. East Stroudsburg University, Slip Copy (2014) triable issue of material fact as to the existence of a conspiracy. (1) the defendant had actual knowledge of a § 1985 In response to University Defendants' argument that conspiracy, (2) the defendant Plaintiffs have failed to allege any class based animus had the power to prevent or aid as required under § 1985(3), as well as failed to offer in preventing the commission any evidence of class based discriminatory animus of a § 1985 violation, (3) the on the part of Dillman, V. Sanders, or Borland, defendant neglected or refused in investigating and responding to Bernard's claims to prevent a § 1985 conspiracy, (Doc. 102, at 39), Plaintiffs allege that there is and (4) a wrongful act was “clear evidence that Plaintiffs were targeted by I. committed. Sanders for sexual assault and harassment because Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir.1994) they were young African American males. Therefore, (internal citations omitted). Consequently, if a plaintiff his targeting of them was based on their race and fails to establish a cause of action under § 1985, he gender” (Doc. 107–2, at 56). While this allegation cannot succeed on a § 1986 claim. Rogin v. Bensalem may support a finding of class based animus by Twp., 616 F.2d 680, 696 (3d Cir.1980). Here, due to I. Sanders, it fails to present a triable issue of Plaintiffs' inability to provide sufficient evidence to material fact as to University Defendants' assertion demonstrate a factual issue for trial on their conspiracy that there was no discriminatory animus on their claim under § 1985(3), a claim for § 1986 also cannot 32 part in addressing Bernard's complaint. Further, go forward. as the Court previously established, there was no injury to any Plaintiff after Bernard filed his official In the alternative to a claim of conspiracy under complaint in August, 2007. In light of Plaintiffs' failure § 1985(3), Plaintiffs request that the Court allow to offer any evidence indicative of the existence of Plaintiffs to amend their Complaint to include a claim a conspiracy or an invidious, intentional purpose to of conspiracy under § 1983. (Doc. 107–2, at 57). discriminate between classes or individuals on the part Under a § 1983 claim for conspiracy, a plaintiff must of University Defendants, as well as evidence of the prove that the defendant (1) deprived the plaintiff of presence of an injury to any Plaintiff subsequent to a right secured by the Constitution and laws of the Bernard's complaint, the Court does not need to reach United States; and (2) deprived the plaintiff of this the issue of any acts in furtherance of the conspiracy constitutional right while acting under color of law. under § 1985(3) to determine that summary judgment Adickes, 398 U.S. at 150. However, Plaintiffs still must be granted for the University Defendants on fail to raise a triable issue of material fact. While Plaintiffs' § 1985(3) claim. University Defendants were acting under color of law, there is no evidence of record that any Plaintiff was 32 Plaintiffs appear to recognize that their argument deprived of his liberty in the relevant time period, fails in regards to establishing any class based i.e. subsequent to University Defendants' acquisition discriminatory animus on the part of University of “actual notice.” Furthermore, as previously stated, Defendants. Plaintiffs' statement that there is there is no evidence of an agreement as necessary to “clear evidence that Plaintiffs were targeted by establish the presence of a conspiracy. Therefore the I. Sanders for sexual assault and harassment Defendants also cannot be held liable for conspiracy because they were young African American under § 1983. males. Therefore, his targeting of them was based on their race and gender” forms the entirety of The Court has reviewed the record and found that their argument on this subject. (Doc. 107–2, at 56). the evidence presented by Plaintiffs fails show a triable issue as to the existence of a conspiracy *37 A § 1986 claim provides an additional safeguard or an invidious, intentional purpose to discriminate for rights protected under § 1985 and Plaintiff must between classes or individuals. Because Plaintiffs show that: have not come forward with any triable issue of material fact as to their contention that an agreement

existed among the University Defendants to violate the rights of African American males, the Court will ORDER grant University Defendants' Motion for Summary Judgment on Plaintiffs' § 1985(3), § 1986, and § 1983 AND NOW, THIS 14th OF APRIL 2014, upon conspiracy claims. consideration of Defendants', East Stroudsburg University, Robert J. Dillman, Kenneth Borland and Victoria L. Sanders, (University Defendants) Motion for Summary Judgment on Counts I, II, III, and IV. CONCLUSION IV (Doc. 93), and all accompanying briefs, IT For the foregoing reasons, the Court will IS HEREBY ORDERED THAT the University grant University Defendants' Motion for Summary Defendants' motion is GRANTED. Judgment (Doc. 93). 33 A separate Order follows. *38 Judgment is HEREBY accordingly entered IN FAVOR OF DEFENDANTS, East Stroudsburg 33 Given this conclusion, the Court does not need University, Robert J. Dillman, Kenneth Borland and to reach the University Defendants' arguments Victoria L. Sanders and AGAINST PLAINTIFFS, regarding whether claims brought by A. Ross and Frantz Bernard, Anthony Ross, and Timotheus Homas. Homas before February 2007 are barred by the statute of limitations. Accepting that some, or all, of Plaintiffs' claims have been timely filed, we All Citations have determined that Defendants are entitled to Summary Judgment as a matter of law. Slip Copy, 2014 WL 1454913

25 F.Supp.3d 598 United States District Court, West Headnotes (40) E.D. Pennsylvania.

Emily FRAZER, Plaintiff [1] Civil Rights v. Nature and elements of civil actions TEMPLE UNIVERSITY, et al., Defendants. To state a claim under § 1983, a plaintiff must allege the violation of a right secured Civil Action No. 13–2675. by the Constitution and laws of the | United States, and must show that the Signed June 5, 2014. alleged deprivation was committed by a person acting under color of state law. 42 Synopsis U.S.C.A. § 1983. Background: Female student brought action against public university and male student asserting due Cases that cite this headnote process, equal protection, and illegal seizure claims under § 1983, hostile educational environment and retaliation claims under Title IX, and various state law [2] Civil Rights claims. University moved to dismiss. Substantive or procedural rights Section 1983 does not provide substantive rights, but instead, provides a remedy for the deprivations of rights established Holdings: The District Court, Nitza I. Quiñones elsewhere in the Constitution or federal Alejandro, J., held that: laws. 42 U.S.C.A. § 1983.

[1] no special relationship existed between university Cases that cite this headnote and student to create constitutional duty to protect her from alleged assault by male student; [3] Civil Rights [2] student failed to state due process claim under state- Acts of officers and employees created danger theory; in general; vicarious liability and respondeat superior in general [3] student failed to state illegal seizure claim against A governmental entity may not be held university; liable under § 1983 for constitutional violations caused solely by its employees [4] student failed to state equal protection claim against or agents under the principle of university; respondeat superior. 42 U.S.C.A. § 1983.

Cases that cite this headnote [5] student failed to state hostile educational environment claim under Title IX; [4] Civil Rights [6] student failed to retaliation claim under Title IX; Governmental Ordinance, Policy, and Practice, or Custom A municipality may be held liable under [7] court would decline to exercise supplemental § 1983 for monetary, declaratory, or jurisdiction over student's remaining state law claims. injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, Motion granted. regulation, or decision officially adopted

and promulgated by that body's officers. Governmental Ordinance, Policy, 42 U.S.C.A. § 1983. Practice, or Custom Civil Rights Cases that cite this headnote Lack of Control, Training, or Supervision; Knowledge and Inaction [5] Civil Rights A plaintiff seeking to impose § 1983 Governmental Ordinance, Policy, liability on a municipality must show Practice, or Custom that an official who has the power to Liability may be imposed on a make policy is responsible for either the municipality under § 1983 where affirmative proclamation of a policy or its official policy or custom causes acquiescence in a well-settled custom. 42 an employee to violate another's U.S.C.A. § 1983. constitutional rights. 42 U.S.C.A. § 1983. Cases that cite this headnote 1 Cases that cite this headnote

[9] Civil Rights [6] Civil Rights Acts of officers and employees Governmental Ordinance, Policy, in general; vicarious liability and Practice, or Custom respondeat superior in general A government policy or custom, as To establish municipal liability under required to impose § 1983 liability § 1983, a plaintiff must first show an on a municipality, can be established underlying constitutional violation. 42 in two ways: (1) “policy” is made U.S.C.A. § 1983. when a decision maker possessing final authority to establish municipal policy Cases that cite this headnote with respect to the action issues an official proclamation, policy, or edict; and (2) a [10] Constitutional Law course of conduct is considered to be a Duty to Protect; Failure to Act “custom” when, though not authorized by While courts recognize that the Due law, such practices of state officials are so Process Clause protects an individual's permanent and well-settled as to virtually interest in his or her bodily integrity, the constitute law. 42 U.S.C.A. § 1983. Constitution imposes no affirmative duty Cases that cite this headnote on municipalities to protect citizens from the acts of private individuals. U.S.C.A. Const.Amend. 14. [7] Civil Rights Lack of Control, Training, or Cases that cite this headnote Supervision; Knowledge and Inaction A government custom, as required [11] Constitutional Law to impose § 1983 liability on a Duty to protect; failure to act municipality, requires proof of knowledge Education and acquiescence by the decision maker. Duty to Protect Against Intentional 42 U.S.C.A. § 1983. Injuries Cases that cite this headnote As a general rule, public university had no obligation under the Due Process Clause to prevent male student's alleged [8] Civil Rights

assault of female student. U.S.C.A. Const.Amend. 14. [15] Constitutional Law Duty to protect; failure to act Cases that cite this headnote Education Duty to Protect Against Intentional [12] Constitutional Law Injuries Custody or restraint; special No special relationship existed between relationship public university and female student While government entities generally do sufficient to create a duty under the Due not have a constitutional obligation to Process Clause to protect female student protect citizens from the conduct of from the alleged assault by male student, private individuals, the Constitution does who was her former boyfriend; female impose upon the State affirmative duties student voluntarily elected to enroll in the of care and protection where a special university. U.S.C.A. Const.Amend. 14. relationship exists between the state and a Cases that cite this headnote particular individual.

1 Cases that cite this headnote [16] Constitutional Law Creation of danger or risk [13] Constitutional Law To assert a viable due process claim Custody or restraint; special under § 1983 pursuant to the state- relationship created danger exception to rule that A state actor's constitutional duty to state is not liable for its failure protect citizens from the conduct of to protect its citizens against private private actors does not arise merely violence, plaintiff must allege facts to from the state actor's knowledge of support each of the following elements: the individual's predicament or from its (1) the harm ultimately caused was expressions of intent to help him, but foreseeable and fairly direct; (2) the rather, such a duty arises only where the state acted with a degree of culpability state actor takes a person into its custody that shocks the conscience; (3) there without consent, and by virtue of this existed some relationship between the custody, limits the individual's freedom to state and plaintiff such that plaintiff was act. a foreseeable victim of the state's acts or a member of a discrete class of persons Cases that cite this headnote subjected to the potential harm brought by the state's actions; and (4) the state used its authority to create a danger to plaintiff [14] Constitutional Law or that rendered plaintiff more vulnerable Custody or restraint; special to danger than had state not acted at all. relationship U.S.C.A. Const.Amend. 14; 42 U.S.C.A. To create a special relationship, that could § 1983. give rise to a state actor's constitutional duty to protect individual citizens from 1 Cases that cite this headnote private actors, the state must affirmatively act to curtail the individual's freedom such [17] Constitutional Law that he or she can no longer care for him Creation of danger or risk or herself. Negligent conduct does not rise to the 1 Cases that cite this headnote level of conscience shocking, as required

to assert a viable due process claim Due Process Clause to prevent male under § 1983 pursuant to the state- student's alleged assault; female student created danger exception to rule that state alleged only that university did not do is not liable for its failure to protect enough to prevent her from being harmed its citizens against private violence. once it knew of male student's propensity U.S.C.A. Const.Amend. 14; 42 U.S.C.A. for violence after he had threatened § 1983. to kill his male roommate. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983. Cases that cite this headnote 1 Cases that cite this headnote [18] Constitutional Law Duty to Protect; Failure to Act [21] Education Constitutional Law Duty to Protect Against Intentional Creation of danger or risk Injuries It is the misuse of state authority, Public university's alleged failure to rather than a failure to use it, that can properly implement and enforce its own violate the Due Process Clause. U.S.C.A. security and discipline policies and Const.Amend. 14. procedures, including policy permitting suspension for violent and threatening Cases that cite this headnote behavior towards oneself or a fellow student, with respect to male student who allegedly assaulted female student [19] Constitutional Law in her dormitory after he had previously Creation of danger or risk threatened to kill his male roommate, A state's § 1983 liability for a due amounted to, at most, negligence, and not process violation under the state-created a constitutional violation. danger theory is predicated upon the states' affirmative acts which work to the Cases that cite this headnote plaintiffs' detriments in terms of exposure to danger. U.S.C.A. Const.Amend. 14; 42 [22] Arrest U.S.C.A. § 1983. What Constitutes a Seizure or 1 Cases that cite this headnote Detention A person is “seized” under the Fourth Amendment when his freedom of [20] Constitutional Law movement is restrained either by means Duty to protect; failure to act of physical force or a show of authority. Education U.S.C.A. Const.Amend. 4. Duty to Protect Against Intentional Injuries Cases that cite this headnote Female student failed to plead any affirmative conduct by public university [23] Arrest that created a danger to her or that What Constitutes a Seizure or exacerbated a danger that she otherwise Detention faced from male student who was her An unconstitutional “seizure” is defined former boyfriend and who allegedly as a governmental termination of freedom assaulted her, as required to establish of movement through means intentionally a viable § 1983 claim under the state- applied. U.S.C.A. Const.Amend. 4. created danger exception to general rule that university had no obligation under

a protected class; (2) similarly situated Cases that cite this headnote to members of an unprotected class; and (3) treated differently from members [24] Arrest of the unprotected class. U.S.C.A. Particular cases Const.Amend. 14; 42 U.S.C.A. § 1983.

Education Cases that cite this headnote Dormitories or other accommodations [27] Constitutional Law Female student's allegation that male Post-secondary institutions student who was her former boyfriend blocked her passage from her dormitory Constitutional Law room was insufficient to establish Students a Fourth Amendment claim that Education public university violated her Fourth Duty to Protect Against Intentional Amendment rights by subjecting her to Injuries an illegal seizure; female student did not Female student failed to allege that she allege that university, through any of its received disparate treatment from public agents, at any point, physically restrained university on the basis of her gender her or used its authority in any way or any other protected characteristic, to confine her, nor did she allege facts as required to state § 1983 claim showing that male student was either a that university violated Equal Protection state actor or a university agent. U.S.C.A. Clause in connection with alleged male Const.Amend. 4. student's assault on female student, who was his former girlfriend; female student Cases that cite this headnote alleged university failed to protect her from male student's aggressive conduct, [25] Constitutional Law she did not allege that his conduct Intentional or purposeful action was targeted at women or was sexual requirement in nature, and her complaint described Constitutional Law only one other incident in which Similarly situated persons; like male student assaulted and/or harassed circumstances someone, his former male roommate. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. To succeed on a § 1983 equal protection § 1983. claim, plaintiff must allege facts demonstrating purposeful discrimination Cases that cite this headnote and that she received different treatment from that received by other individuals similarly situated. U.S.C.A. [28] Civil Rights Const.Amend. 14; 42 U.S.C.A. § 1983. Sexual harassment; sexually hostile environment Cases that cite this headnote To recover in a suit against a school under Title IX for student-on-student sexual [26] Constitutional Law harassment, a plaintiff must establish Similarly situated persons; like sexual harassment of students that is circumstances so severe, pervasive, and objectively offensive, and that so undermines and To meet the elements of a § 1983 detracts from the victims' educational equal protection claim, plaintiff must experience, that the victim students are allege that: (1) she was a member of

effectively denied equal access to an To assert a viable hostile education institution's resources and opportunities. environment claim under Title IX, Education Amendments of 1972, § 901, plaintiff must allege facts sufficient to 20 U.S.C.A. § 1681. establish that school acted deliberately indifferently to sexual harassment, of 1 Cases that cite this headnote which school had actual knowledge, that is so severe, pervasive, and objectively [29] Civil Rights offensive that it can be said to deprive Sexual harassment; sexually hostile plaintiff of access to the educational environment opportunities or benefits provided by the school. Education Amendments of 1972, A plaintiff bringing suit against a school § 901, 20 U.S.C.A. § 1681. under Title IX for student-on-student sexual harassment must allege facts 1 Cases that cite this headnote showing that the school acted with deliberate indifference to known acts of harassment in its programs or activities. [32] Civil Rights Education Amendments of 1972, § 901, Sexual harassment; sexually hostile 20 U.S.C.A. § 1681. environment Male student's alleged conduct towards 1 Cases that cite this headnote female student during the month between his alleged assault of female student, [30] Civil Rights who was his former girlfriend, and Sexual harassment; sexually hostile university disciplinary hearing, was not environment sexual harassment that was so severe, pervasive, and objectively offensive that Female student did not allege facts it deprived female student of access to showing that public university had actual the educational opportunities or benefits knowledge of any sexual harassment provided by the school, as required to by male student who was her former establish hostile educational environment boyfriend prior to his alleged assault claim under Title IX; female student of her, and thus university could not alleged that male student was permitted to have acted with deliberate indifference, as remain on campus following the assault, required to establish claim that university that during that time, he followed her, created a hostile educational environment sat outside her dormitory, and followed in violation of Title IX; at most, female her into the cafeteria and stood directly student alleged that university was placed beside her and stared at her while she on notice of male student's propensity was having a conversation with a fellow for violence as it related to his former student, and she alleged that she reported male roommate, but that abusive and male student's conduct to university intimidating conduct was not directed at security, but no corrective measures were female student, or women, and it was not taken prior to his disciplinary hearing. sexual in nature. Education Amendments Education Amendments of 1972, § 901, of 1972, § 901, 20 U.S.C.A. § 1681. 20 U.S.C.A. § 1681. Cases that cite this headnote 1 Cases that cite this headnote

[31] Civil Rights [33] Civil Rights Sexual harassment; sexually hostile environment

Sexual harassment; sexually hostile school retaliated against her because environment she complained of sex discrimination. Female student failed to allege Education Amendments of 1972, § 901, facts sufficient to establish that 20 U.S.C.A. § 1681. public university exhibited deliberate Cases that cite this headnote indifference to her claims of sexual harassment by male student who was her former boyfriend, as required to assert [36] Civil Rights a viable hostile education environment Sex Discrimination claim under Title IX; as alleged, To assert a viable claim for retaliation university undertook relatively prompt under Title IX, plaintiff must allege: (1) remedial action by holding a disciplinary that she engaged in conduct protected hearing within a month of the incident, by title IX; (2) that school took adverse which resulted in male student's being action against her; and (3) that a suspended. Education Amendments of causal link existed between the protected 1972, § 901, 20 U.S.C.A. § 1681. conduct and the adverse action. Education Amendments of 1972, § 901, 20 U.S.C.A. Cases that cite this headnote § 1681.

[34] Civil Rights 1 Cases that cite this headnote Extracurricular activities; athletics Female student failed to sufficiently [37] Civil Rights allege a causal connection between her Sex Discrimination complaints to public university regarding To establish the requisite causal alleged assault by male student who was connection for a retaliation claim under her former boyfriend and her removal Title IX, plaintiff must allege facts to some 15 months later from university's demonstrate either: (1) an unusually volleyball team and the revocation of suggestive temporal proximity between her athletic scholarship, as required to the protected activity and the allegedly establish retaliation claim under Title IX; retaliatory action, or (2) a pattern the 15–month gap was not so unusually of antagonism coupled with timing suggestive to raise student's right to to establish a causal link. Education relief for Title IX retaliation above the Amendments of 1972, § 901, 20 U.S.C.A. speculative level, and she did not allege § 1681. any antagonistic conduct or animus by university occurring between the time she 1 Cases that cite this headnote allegedly reported the assault and the time she was removed from the volleyball [38] Civil Rights team. Education Amendments of 1972, § Sex Discrimination 901, 20 U.S.C.A. § 1681. As to demonstrating a pattern of Cases that cite this headnote antagonism coupled with timing to establish a causal link, as would support retaliation claim under Title IX, [35] Civil Rights plaintiff must allege facts showing actual Sex Discrimination antagonistic conduct or animus in the To assert a viable claim for retaliation intervening period, between the protected under Title IX, plaintiff must plead activity and the retaliation. Education facts sufficient to plausibly show that

Amendments of 1972, § 901, 20 U.S.C.A. § 1681. MEMORANDUM OPINION 1 Cases that cite this headnote NITZA I. QUIÑONES ALEJANDRO, District Judge. [39] Federal Courts INTRODUCTION Effect of dismissal or other Before this Court is a motion to dismiss filed elimination of federal claims by Defendant Temple University (“Defendant” or Because district court dismissed all of “Temple”), pursuant to Federal Rule of Civil Plaintiff s federal claims against public Procedure (Rule) 12(b)(6), which seeks the dismissal university under § 1983 and Title IX over of all federal and state claims asserted against it. [ECF which it had original jurisdiction, which 1–21]. Emily Frazer (“Plaintiff” or “Frazer”) opposes arose from assault by male student, court the motion [ECF 1–27], making the motion to dismiss would decline to exercise supplemental ripe for disposition. 1 jurisdiction over her remaining state law claims, including those brought against 1 male student. Education Amendments of In ruling on Defendant's motion to dismiss, 1972, § 901, 20 U.S.C.A. § 1681; 28 this Court has also considered Defendant's reply [ECF 1–28], Defendant's notice of supplemental U.S.C.A. § 1367(c)(3); 42 U.S.C.A. § authority [ECF 11] and the allegations contained 1983. in the complaint [ECF 1–1]. Cases that cite this headnote For the reasons stated herein, the motion to dismiss is granted. [40] Federal Civil Procedure Pleading over BACKGROUND A district court must ordinarily provide On January 11, 2013, Plaintiff filed a civil rights a civil rights plaintiff an opportunity to action asserting various federal and state law claims file an amended complaint where the against Temple, Andrew Cerett (“Cerett”), and Allied original complaint is subject to dismissal Barton Security Services, LLC (“Allied Barton”). for failure to state a claim. Fed.Rules The federal causes of action asserted against Temple Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. are: civil rights claims under 42 U.S.C. § 1983 (“§ 1983”) for violating Plaintiff's substantive due Cases that cite this headnote process and equal protection rights guaranteed by the Fourteenth Amendment; illegal seizure in violation of the Fourth Amendment; creating a hostile educational environment and retaliation in violation of Title IX, 20 Attorneys and Law Firms U.S.C. § 1681; and violation of 20 U.S.C. § 1092(f) 2 *604 Jason P. Kutulakis, Abom & Kutulakis, (the “Clery Act”). The state law causes of action Carlisle, PA, for Plaintiff. asserted against Temple are: negligence, intentional infliction of emotional distress, and violations of the Karen P. Gaster, Paul J. Sopher, Rubin Fortunato & Pennsylvania constitution. [ECF 1–1]. Harbison, P.C., Maria V. Martin, Rubin & Associates, P.C., Paoli, PA, for Defendants. 2 In her opposition brief, Plaintiff withdraws her claim under the Clery Act and for punitive Andrew Cerett, Fredericktown, PA, pro se. damages under Title IX and § 1983. Defendant filed the instant motion to dismiss on March 22, 2013. 3 When ruling on this motion, this

Court must accept, as true, the relevant allegations in approximately 10 PM on the evening of January Plaintiff's complaint, to wit: 21, 2011, Cerett entered the lobby area of Plaintiff's dormitory building visibly intoxicated 3 Previously, on March 11, 2013, Defendant Allied to the dormitory security. (Id. at ¶ 54). Contrary Barton was dismissed by stipulation. [ECF 1, to established security protocols and procedures, Doc. 16]. Defendant Cerett, acting pro se, filed an the dormitory security did not ask Cerett for answer to the complaint on September 13, 2013. identification or require him to sign in and/or [ECF 16]. identify the guest he was visiting. (Id. at ¶¶ 56– 58). Cerett walked past security uninterrupted and Frazer is an adult female, and has been a full-time took the elevator to Plaintiff's floor. (Id. at ¶ 60). student at Temple since January 2010, (Comp. ¶¶ 6– 7), and initially attended Temple on a full athletic At the time, Plaintiff and some of her friends were scholarship to play volleyball. (Id. at ¶ 30). gathered in a dormitory room of another fellow student on Plaintiff's floor. (Id. at ¶ 61). Another Defendant Cerett is an adult male, who was a student, Anthony Lee, knocked on the student's full-time student at Temple from May 2010 until dormitory room door and asked to enter. (Id. at May 2011. (Id. at ¶ 16). Cerett was also a student ¶ 62). Cerett, who was hiding behind Anthony athlete with a full scholarship as a punter for Lee when the door was opened, forced his way the Temple football team during that same time inside the room. (Id. at ¶ 63). Cerett tried to period. (Id. at ¶¶ 17–18). When Plaintiff filed her convince Plaintiff to speak with him, but Plaintiff complaint, Cerett was 21 years old, six foot five and her two roommates left the room immediately inches tall, and weighed 260 pounds. (Id. at ¶ 19). and entered another dormitory room across the hall. (Id. at ¶¶ 64–65). Cerett waited outside that At all relevant times, Plaintiff lived in Temple's dormitory room, and when that door was opened, dormitory building which has controlled access. he forced his way into the room and began yelling That is, every Temple dormitory building is at Plaintiff. (Id. at ¶ 66–68). Plaintiff left the room equipped with *605 electronic card readers, and ran down the hall to her own suite. (Id. at ¶ (Id. at ¶ 37), and each dormitory resident has 69). Once in her suite, Plaintiff attempted to shut a student identification card that when swiped, the door behind her, but Cerett kicked the door grants access only into their own dormitory open, entered without permission, (Id. at ¶¶ 70– building. (Id. at ¶¶ 38, 40). When visiting another 71), screamed and threatened Plaintiff, stating “if dormitory, guests must sign in and be granted I can't have you no one can have you.” (Id. at ¶¶ access by security staff and then escorted by 72–73). one of the dormitory residents. (Id. at ¶¶ 40– 42). Security is required to retain a guest's Plaintiff repeatedly asked Cerett to leave. (Id. at identification until the guest signs out and leaves ¶ 77). She ran to her bedroom within the suite the building. (Id. at ¶ 45). and attempted to shut the door, (Id. at ¶ 78), but Cerett forced his way into the bedroom, slammed From August 2010 to May 2012, Plaintiff lived the door shut, and blocked the doorway. (Id. at ¶ on the fifth floor of the Cecil B. Moore dormitory 79). Cerett continued his threats to kill Plaintiff, building with two roommates. (Id. at ¶ 46). Cerett as she pleaded with him to leave and not harm her. lived on the same dormitory floor as Plaintiff with (Id. at ¶¶ 80–81). One of Plaintiff's roommates his roommate, Adam Metz, from August 2010 to and another male student restrained Cerett, forced December 2010, when Temple moved Cerett out him into the common area of the suite, and called of the dormitory. (Id. at ¶¶ 47, 49). Plaintiff and Temple's police. (Id. at ¶¶ 82–84). As the police Cerett dated briefly on and off from August 2010 were being called, Cerett left the suite, (Id. at until January 2011. (Id. at ¶ 50). ¶ 85), and punched through a window in the dormitory hallway leaving blood on the walls of On January 17, 2011, Plaintiff ended her the hallway. (Id. at ¶ 86). relationship with Cerett. (Id. at ¶ 51). At

himself. (Id. at ¶ 118–126). On one occasion, While eluding the police, Cerett called and texted in the November 2010 Fall semester, Cerett Plaintiff's cell phone. (Id. at ¶ 88). Campus police threatened to kill his roommate and fellow instructed Plaintiff to answer a call from Cerett football teammate, Adam Metz. (Id. at ¶¶ 128, and coax him into telling her where he was hiding. 131). Metz reported the incident to Temple and (Id. at ¶ 89). The campus police found Cerett his football coaches, (Id. at ¶¶ 127–129, 133), and hiding on the third floor of the dormitory building immediately moved out of the room he shared and took *606 him into custody. (Id. at ¶ 90). with Cerett. (Id. at ¶ 134). Plaintiff contends that While in custody, Cerett called Plaintiff several despite university policy permitting suspension times that evening. (Id. at ¶ 92). for violent and threatening behavior towards oneself or a fellow student, Temple failed to take Plaintiff left campus and did not return until proper disciplinary measures against Cerett after January 24, 2011. (Id. at ¶¶ 91, 93). A disciplinary the incident with his roommate. (Id. at ¶¶ 137– hearing before the University Student Conduct 138). Board (Board) pertaining to the January 21, 2011 incident was scheduled for February 18, LEGAL STANDARD 2011. (Id. at ¶ 94). In the meantime, Cerett When considering a Rule 12(b)(6) motion to dismiss was permitted to remain on campus pending the for failure to state a claim, a court “must accept all hearing. (Id. at ¶ 99). During that period, Cerett of the complaint's well-pleaded facts as true, but may repeatedly followed Plaintiff, sat outside of her disregard any legal conclusions.” Fowler v. UPMC dormitory building, (Id. at ¶ ¶ 101–103), and on Shadyside, 578 F.3d 203, 210–11 (3d Cir.2009). The one occasion, followed Plaintiff into the cafeteria court must determine “whether the facts alleged in and stood directly beside her while she conversed the complaint are sufficient to show that the plaintiff with a fellow student. (Id. at ¶ 104). Plaintiff has a ‘plausible claim for relief’ ” Id. at 211 (quoting informed the University of Cerett's conduct but no Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, corrective measures were taken, though Plaintiff 173 L.Ed.2d 868 (2009)). The complaint must do more was temporarily banned from the Edge dormitory than merely allege the plaintiff's entitlement to relief; building. (Id. at ¶¶ 105–107). it must “show such an entitlement with its facts.” Id. (citations omitted). “[W]here the well-pleaded facts On February 18, 2011, the Board held a do not permit the court to infer more than the mere disciplinary hearing related to the January 21, possibility of misconduct the complaint has alleged— 2011, incident and issued a decision on March but it has not ‘show[n]’—‘that the pleader is entitled 18, 2011. (Id. at ¶¶ 94–95). Cerett was found to relief.’ ” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 in violation of various sections of the Student (quoting Fed.R.Civ.P. 8(a)) (alterations in original). Conduct Code and suspended until August 29, “A claim has facial plausibility when the plaintiff 2011. (Id. at ¶¶ 96–97). pleads factual content that allows the court to draw Throughout this period, Plaintiff continued to the reasonable inference that the defendant is *607 participate on the Temple volleyball team. (Id. liable for the misconduct alleged.” Id. at 678, 129 S.Ct. at ¶ 112). In May 2012, Plaintiff was removed 1937 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. from the volleyball team and her scholarship was 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). revoked. (Id. at ¶ 114). Following a grievance “Threadbare recitals of the elements of a cause of procedure, although 50% of her scholarship was action, supported by mere conclusory statements do reinstated on July 9, 2012, (Id. at ¶ 116), Plaintiff not suffice.” Id. To survive a motion to dismiss under was not permitted to return to the volleyball team. Rule 12(b)(6), “a plaintiff must allege facts sufficient (Id. at ¶ 117). to ‘nudge [his] claims across the line from conceivable to plausible.’ ” Phillips v. County of Allegheny, 515 Plaintiff also contends that Temple was aware F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 of previous incidents by Cerett against other U.S. at 570, 127 S.Ct. 1955). students, that he had psychological and anger issues, and that he had threatened to harm

[3] [4] [5] [6] A governmental entity, however, DISCUSSION may not be held liable under § 1983 for constitutional In the complaint, Plaintiff asserts that Temple violated violations caused solely by its employees or agents her due process and equal protection rights guaranteed under the principle of respondeat superior. Monell by the Fourteenth Amendment, and her right to be free v. New York Department of Social Services, 436 from illegal seizure under the Fourth Amendment. 4 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 Each of these claims will be addressed separately. (1978). Rather, a municipality may be held liable under § 1983 for monetary, declaratory, or injunctive 4 Plaintiff's complaint includes a “Summary relief where the action that is alleged to be of Claims” in which she states that she unconstitutional implements or executes a policy seeks additional relief under the Fifth and statement, ordinance, regulation, or decision officially Ninth Amendments. However, nowhere in adopted and promulgated by that body's officers. Id. her complaint does Plaintiff make claims or at 694, 98 S.Ct. 2018. That is, liability may be allege facts under either of these constitutional imposed on a municipality where its official “policy amendments. Regardless, no relief is warranted or custom” “causes” an employee to violate another's because the Ninth Amendment does not provide constitutional rights. Id.; see also Brown v. School a source of substantive rights, and the Fifth Dist. of Philadelphia, 456 Fed.Appx. 88, 90 (3d Amendment is only applicable to the Federal Cir.2011) (citing Santiago v. Warminster Twp., 629 Government. See B & G Constr. Co. v. Dir., F.3d 121, 135 (3d Cir.2010)). As set forth by the Third Office of Workers' Comp. Programs, 662 F.3d Circuit, a government *608 policy or custom can be 233, 246 n. 14 (3d Cir.2011) (treating a due process claim against federal defendants as a established in two ways: claim under the Fifth Amendment's Due Process Policy is made when a “decision maker possess[ing] Clause, “as the Fourteenth Amendment applies final authority to establish municipal policy only to acts under color of state law whereas the Fifth Amendment applies to actions of the federal with respect to the action” issues an official government.”) proclamation, policy, or edict. A course of conduct is considered to be a “custom” when, though not [1] [2] To state a claim under § 1983, a plaintiff authorized by law, “such practices of state officials must allege the violation of a right secured by the [are] so permanent and well-settled” as to virtually Constitution and laws of the United States, and must constitute law. show that the alleged deprivation was committed by a person acting under color of state law. American Mfrs. Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. (3d Cir.1990). 977, 143 L.Ed.2d 130 (1999); Morrow v. Balaski, 719 F.3d 160, 165–66 (3d Cir.2013). Section 1983 does [7] [8] “Custom requires proof of knowledge and not provide substantive rights, but instead, “provides acquiescence by the decision maker.” McTernan v. a remedy for the deprivations of rights established York, 564 F.3d 636, 658 (3d Cir.2009). In either elsewhere in the Constitution or federal laws.” Kopec instance, “a plaintiff must show that an official who has v. Tate, 361 F.3d 772, 775–76 (3d Cir.2004). Thus, to the power to make policy is responsible for either the establish a § 1983 violation, Plaintiff must allege facts affirmative proclamation of a policy or acquiescence in sufficient to establish that Temple, acting under color a well-settled custom.” Bielevicz v. Dubinon, 915 F.2d of state law, deprived Plaintiff of a right secured by the 845, 850 (3d Cir.1990); see also Andrews, 895 F.2d at Constitution or by the laws of the United States. See 1480. Robb v. City of Philadelphia, 733 F.2d 286, 290–91 (3d Cir.1984). For purposes of § 1983, it is undisputed [9] To establish municipal liability, however, a that Temple is a municipal subdivision. See Franks v. plaintiff must first show an underlying constitutional Temple Univ., 2011 WL 1562598 (E.D.Pa. Apr. 26, violation. See Marable v. West Pottsgrove Twp., 176 2011) (citing Molthan v. Temple Univ., 778 F.2d 955, Fed.Appx. 275, 283 (3d Cir.2006) (“[A] municipality 961 (3d Cir.1985)). may not incur Monell liability as a result of the actions of its officers when its officers have inflicted no

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 43 11 Frazer v. Temple University, 25 F.Supp.3d 598 (2014) 311 Ed. Law Rep. 665 constitutional injury.”). Therefore, in order to state a § in foreseeable injury to a discrete plaintiff. See Ye 1983 claim against Temple, Plaintiff must allege facts v. United States, 484 F.3d 634, 637 (3d Cir.2007); to demonstrate: (1) the deprivation of a constitutional Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir.1996). right; and (2) that such deprivation arose out of an official policy or custom of Temple. With these [11] In light of the above-cited case law, this Court legal principles in mind, this Court addresses each of finds that Temple generally has no constitutional Plaintiff's § 1983 claims below. obligation to prevent private, student-on-student violence, i.e., Cerett's alleged assault of Plaintiff. This Court will consider, however, whether either of the two exceptions to the general rule applies to Plaintiff's Plaintiff's Fourteenth Amendment Due Process Claim claims. [10] Plaintiff alleges that Temple violated her Fourteenth Amendment due process rights by failing to protect her from the verbal and physical intimidation 1. Special Relationship Exception by fellow Temple student, Cerett. The Fourteenth Amendment provides that a state shall not “deprive [12] [13] [14] As stated, while government entities any person of life, liberty, or property, without due generally do not have a constitutional obligation process of law.” U.S. Const. Amend. XIV, § 1. While to protect citizens from the conduct of private courts recognize that the Due Process Clause protects individuals, the Constitution does “impose[ ] upon the an individual's interest in his or her bodily integrity, the State affirmative duties of care and protection” where Constitution, however, imposes no affirmative duty a “special relationship” exists between the state and on municipalities to protect citizens from the acts of a particular individual. Morrow, 719 F.3d. at 167. A private individuals. DeShaney v. Winnebago County state actor's duty to protect such citizens does not Dep't of Soc. Servs., 489 U.S. 189, 195–96, 109 S.Ct. arise merely from the state actor's “knowledge of 998, 103 L.Ed.2d 249 (1989); Morrow, 719 F.3d at the individual's predicament or from its expressions 166. Specifically, in DeShaney, the Supreme Court of intent to help him....” Id. at 168. Rather, such a noted that “nothing in the language of the Due Process duty arises only where the state actor takes a person Clause itself requires the State to protect the life, into its custody without consent, and by virtue of liberty, and property of its citizens against invasion by this custody, limits the individual's freedom to act. private actors.” Id. at 195, 109 S.Ct. 998. “Its purpose Id. A “special relationship” exists only in the limited was to protect the people from the State, not to ensure circumstances where the state has taken a person that the State protected them from each other.” Id. at into custody or otherwise prevented that person from 196, 109 S.Ct. 998. helping him/herself. Kneipp, 95 F.3d at 1204–05; D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 The Third Circuit has held that DeShaney “stands for F.2d 1364, 1370 (3d Cir.1992). To create a “special the harsh proposition that even though state officials relationship,” the “state must affirmatively act to know that a person is in imminent danger of harm curtail the individual's freedom such that he or she from a third party, the fourteenth amendment imposes can no longer care for him or herself.” Regalbuto upon those state officials no obligation to prevent that v. City of Philadelphia, 937 F.Supp. 374, 379–80 harm.” Horton v. Flenory, 889 F.2d 454, 457 (3d (E.D.Pa.1995), aff'd, 91 F.3d 125 (3d Cir.1996); Cir.1989); see also Morrow, 719 F.3d at 166 (stating see also Torisky v. Schweiker, 446 F.3d 438, 446 as “a general matter, ... a State's failure to protect an (3d Cir.2006) (holding that the special relationship individual against private violence simply does not exception “must be confined to cases in which a person constitute a violation of the Due Process Clause.”) is taken into state custody against his will.”). (quoting DeShaney ). Following DeShaney, the Third Circuit has held that a state may be liable for its failure The Third Circuit has repeatedly held that publicly- to protect its citizens against private violence when the funded schools do not have a special relationship with state (1) enters into a “special relationship” with the their students that would create “a constitutional duty plaintiff or (2) creates a danger which *609 results to protect students from private actors.” Morrow, 719

F.3d at 170; see also D.R., 972 F.2d at 1369–72 In its motion, Defendant argues that the facts alleged (holding that no special relationship existed between in Plaintiffs complaint fail to satisfy the second and the school and student); Brown v. School District of fourth elements. As set forth below, this Court finds Philadelphia, 456 Fed.Appx. 88, 90 n. 5 (3d Cir.2011) that Plaintiff failed to meet the fourth element, and, (noting the existence of the special relationship therefore, it will limit its analysis to this element. See exception, but stating “a student in school does not Morse v. Lower Merion School Dist., 132 F.3d 902, have that relationship with the state.”). 914 (3d Cir.1997) (holding that plaintiff's failure to meet any one of the elements requires dismissal of [15] In light of the Third Circuit's cited case law, this claim). 6 Court cannot find that a “special relationship” existed between Temple and Plaintiff. Just as a public high 6 This Court makes no findings as to whether school does not have a special relationship with its Plaintiff has alleged facts sufficient to meet any minor children sufficient to create a constitutional duty of the other three elements. to protect those students from the harmful acts of other students, neither does a publicly-funded university [18] [19] To establish the fourth element of a with regard to its adult students who voluntarily elect state-created danger claim, Plaintiff must allege facts showing that Temple: (1) exercised its authority; (2) to enroll in the university. 5 took an affirmative action; and (3) that this action created a danger to Plaintiff or rendered Plaintiff more 5 Neither party, nor this Court has identified vulnerable to danger than had Temple not acted at all. any authoritative decision in which a public See Ye, 484 F.3d at 639. “[I]t is [the] misuse of state university was held to have such a constitutional authority, rather than a failure to use it, that can violate obligation to its students. the Due Process Clause.” Bright, 443 F.3d at 282. In other words, “[l]iability under the state-created danger theory is predicated upon the states' affirmative acts 2. State–Created Danger Exception which work to the plaintiffs' detriments in terms of [16] [17] As to the second exception, the Third exposure to danger.” D.R., 972 F.2d at 1374. Circuit adopted the co-called “state-created danger” exception in Kneipp v. Tedder, 95 F.3d 1199, 1205 The Third Circuit has repeatedly rejected state-created (3d Cir.1996). To assert a viable § 1983 claim under danger claims in cases involving student-on-student the “state-created danger” exception, Plaintiff must school violence, even where school officials were allege facts to support each of the following elements: alleged to have known of the dangerous conditions (1) the harm ultimately *610 caused was foreseeable within the school that ultimately resulted in injury and fairly direct; (2) Temple acted with a degree of to the plaintiff, on the ground that the schools culpability that shocks the conscience; (3) there existed did not affirmatively act to create the danger. See some relationship between Temple and Plaintiff such e.g., Morrow, 719 F.3d at 178–179 (holding that that Plaintiff was a foreseeable victim of Temple's acts the school's failure to expel harassing student, and or a member of a discrete class of persons subjected permit the student to return following a suspension to the potential harm brought by Temple's actions; and board plaintiff's bus, did not constitute requisite and (4) Temple used its authority to create a danger affirmative act for state-created danger); Brown, 456 to Plaintiff or that rendered Plaintiff more vulnerable Fed.Appx. at 89–90 (holding that school's failure to to danger than had Temple not acted at all. See expel or appropriately punish a violent student does not Bright v. Westmoreland County, 443 F.3d 276, 281 (3d constitute a sufficient affirmative act for state-created Cir.2006). In the context of the state-created danger danger); D.R., 972 F.2d 1364 (holding that school's analysis, negligent conduct does not rise to the level of failure to adequately address and remediate known conscience shocking. Kaucher v. Cnty. of Bucks, 455 physical and sexual misconduct by students did not F.3d 418, 426 (3d Cir.2006). constitute an affirmative act for state-created danger).

In Brown, 456 Fed.Appx. 88, the plaintiff, a sophomore high school student with mild mental

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 45 13 Frazer v. Temple University, 25 F.Supp.3d 598 (2014) 311 Ed. Law Rep. 665 retardation and her mother advised a teacher and an of the incidents, the school district failed to keep the assistant principal that another student had assaulted aggressor away from the victims, and the verbal and the plaintiff after she had failed to meet him in physical assaults continued. Id. The school advised the the library for oral sex. Id. at 90. The teacher victims' parents to relocate their children to another and/or assistant principal promised that the school school, and declined to remove the aggressor. Id. at would provide the plaintiff with one-on-one adult 164–65. The victims brought § 1983 actions against supervision. Notwithstanding the promise, two weeks the school for the alleged violations of the victims' due later plaintiff was sexually assaulted by five fellow process rights, arguing that the defendant public school students during the lunch hour at school. Id. at 89. had a duty to protect them because the school created Plaintiff asserted that the school was liable under or exacerbated a dangerous condition. Id. at 177. The § 1983 for its *611 failure to have fulfilled its Third Circuit held that a public school's failure to use promise of providing the plaintiff adult supervision its disciplinary authority and to follow its own internal and its failure to expel or appropriately discipline procedures was not sufficient to establish that the state violent students. Id. at 90. Affirming the district court's affirmatively used its authority to create a danger to the dismissal of the claims, the Third Circuit held that the student. Id. at 177–79. plaintiff had failed to allege the required affirmative acts on the part of the school to establish a state-created [21] Like the plaintiffs in Morrow, Plaintiff in this danger. Id. at 92. matter has not pled any facts to establish that Temple affirmatively acted to place her in danger or increased Similarly, in Pagan v. City of Philadelphia, 2012 danger. Rather, Plaintiff has alleged only that Temple WL 1965386 (E.D.Pa. May 31, 2012), the plaintiff, a did not do enough to prevent her from being harmed special needs student, was severely beaten by another once it knew of Cerett's propensity for violence student in a school stairwell. Id. at *1, *3. The plaintiff following his incident with his male roommate. While alleged that the school district violated his substantive Plaintiff contends that these alleged omissions caused due process right to personal bodily integrity through her injuries, she has failed to allege any affirmative its acquiescence in a policy or custom of failing to conduct by Temple that created a danger to Plaintiff provide adequate security to students. Id. at *2–4. The or that exacerbated a danger that Plaintiff otherwise plaintiff had further alleged that the school was aware faced. Absent allegations of such affirmative conduct that other students had been assaulted by students in by Temple, Plaintiff has failed to allege sufficient the school stairwells. Id. at *5. The court dismissed facts to establish a viable claim under the state-created the plaintiff's due process claim because the plaintiff danger exception. 7 had alleged school conduct that amounted only to omissions and held that “only the affirmative exercise 7 Though Plaintiff also seeks to impose liability of state authority is actionable as state-created danger.” on Temple based upon its alleged failure Id. at *27. to properly implement and enforce its own security and discipline policies and procedures, [20] This case is, in many respects, similar to as alleged, Temple's failure to follow those those discussed above and Morrow, 719 F.3d 160. protocols amounts to, at most, negligence, and In Morrow, two sisters were subjected to a series not a constitutional violation. Cf., Morrow, 719 of ongoing verbal threats and physical assaults by F.3d at 178 (“[W]e decline to hold that a school's a fellow student including, a physical attack in the alleged failure to enforce a disciplinary policy school lunch room, an attempt to throw one of the is equivalent to an affirmative act under the victims down the school's stairs, and a strike to one circumstances here.”). victim's throat. Id. at 164. Each of these incidents was reported to the school. In response, the school *612 Plaintiff's Fourth Amendment Claim temporarily suspended the aggressor; and a juvenile court adjudicated the aggressor delinquent and ordered [22] [23] Plaintiff also asserts that Temple violated the aggressor to have no contact with the victims. Id. her Fourth Amendment rights by subjecting her to Despite the court order and the school's knowledge an illegal seizure. A person is seized under the

Fourth Amendment when “his freedom of movement above, Plaintiff bases her claims on Temple's alleged is restrained” either “by means of physical force or failure to protect her from Cerett's aggressive conduct. a show of authority.” Gwynn v. City of Philadelphia, Plaintiff does not allege, however, that Cerett's conduct 719 F.3d 295, 300 (3d Cir.2013). An unconstitutional was targeted at women or was sexual in nature. To the seizure is defined as “a governmental termination of contrary, Plaintiff's complaint describes only one other freedom of movement through means intentionally incident in which Cerett assaulted and/or harassed applied.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596– someone, i.e., his former male roommate. 97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). Plaintiff's complaint is also devoid of any allegation [24] Plaintiff's complaint is completely devoid of any that Temple treated her less favorably than it treated factual allegations to support an intentional “seizure” Cerett's male victim. In fact, Plaintiff makes no attempt of her by Temple within the meaning of the Fourth to identify any similarly situated individuals who were Amendment. Plaintiffs complaint does not allege that treated differently than she was. In addition, Plaintiff Temple, through any of its agents, at any point, alleges that following the January 21, 2011, incident, physically restrained her or used its authority in any Temple held a disciplinary hearing against Cerett way to confine her. The only facts pertaining to within one month and suspended him for five months. a “seizure” are those relating to Cerett's actions of Based on these alleged facts, this Court cannot find that blocking Plaintiff's passage from her dormitory room Frazer received disparate treatment on the basis of her on January 21, 2011. (Comp. ¶ 79). Plaintiff has not *613 gender or any other protected characteristic in alleged facts, nor can she, that can establish Cerett as violation of the equal protection clause. either a state actor or a Temple agent. Plaintiff's lone allegation as to Cerett's seizure of her is insufficient to establish a Fourth Amendment claim against Temple, Plaintiff's Title IX Hostile and, therefore, this claim against Temple fails. Education Environment Claim

In addition to her constitutional claims, Plaintiff asserts Plaintiff's Equal Protection Claim that Temple created a hostile educational environment in violation of Title IX, 20 U.S.C. § 1681. This statute [25] [26] In addition, Plaintiff asserts a § 1983 claim provides that “[n]o person in the United States shall, on based upon Temple's violation of her constitutional the basis of sex, be excluded from participation in, be right to equal protection. To succeed on a § 1983 denied the benefits of, or be subjected to discrimination equal protection claim, Plaintiff must allege facts under any education program or activity receiving demonstrating “purposeful discrimination” and that Federal financial assistance.” 20 U.S.C. § 1681(a). she “receiv[ed] different treatment from that received by other individuals similarly situated.” Andrews, 895 [28] [29] The Supreme Court has recognized that F.2d at 1478; see also Chambers v. Sch. Dist. of Phila. a public school student may bring suit against a Bd. of Educ, 587 F.3d 176, 196 (3d Cir.2009). To meet school under Title IX for student-on-student sexual the prima facie elements, Plaintiff must allege that: (1) harassment. Davis v. Monroe County Bd. of Educ., 526 she was a member of a protected class; (2) similarly U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). To situated to members of an unprotected class; and (3) recover under the statute in such a case: treated differently from members of the unprotected class. Oliveira v. Twp. of Irvington, 41 Fed.Appx. 555, a plaintiff must establish sexual 559 (3d Cir.2005); Keenan v. City of Philadelphia, 983 harassment of students that F.2d 459, 465 (3d Cir.1992). is so severe, pervasive, and objectively offensive, and that [27] In the complaint, Plaintiff fails to allege facts so undermines and detracts to show that she was the victim of purposeful from the victims' educational discrimination or that she was treated differently experience, that the victim because of a protected characteristic. As set forth students are effectively denied

equal access to an institution's be expected to exercise the same degree of control resources and opportunities. over its students that a grade school would enjoy,” and opined that “in an appropriate case, there is no reason Id. at 651, 119 S.Ct. 1661. A plaintiff must also why courts, on a motion to dismiss ... could not identify allege facts showing that the school acted “with a response as not ‘clearly unreasonable’ as a matter of deliberate indifference to known acts of harassment in law.” Id. its programs or activities.” Id. at 633, 119 S.Ct. 1661. [30] [31] Thus, under Davis, to assert a viable For example in Davis, a fifth grade student endured hostile education environment claim under Title IX, continued sexual harassment by one of her classmates Plaintiff must allege facts sufficient to establish over a period of five months. Id. at 653, 119 S.Ct. 1661. that Temple acted “deliberately indifferent to sexual Although the harassment was reported to teachers harassment, of which [Temple had] actual knowledge, and the principal, the school board “made no effort that is so severe, pervasive, and objectively offensive whatsoever either to investigate or to put an end that it can be said to *614 deprive [Plaintiff] of access to the harassment,” even after the student-aggressor to the educational opportunities or benefits provided pled guilty to criminal sexual misconduct. Id. at 654, by the school.” Davis, 526 U.S. at 650, 119 S.Ct. 1661. 119 S.Ct. 1661. The Supreme Court held that under Reading the allegations in Plaintiff's complaint in the these circumstances, the school board's deliberate light most favorable to Plaintiff, however, there are no indifference to student harassment warranted Title IX factual allegations that Temple acted with deliberate liability. In reaching its decision, however, the Court indifference to known acts of sexual harassment. For cautioned: example, Plaintiff does not allege that she notified Temple of any sexual harassment by Cerett prior We stress that our conclusion to the January 21, 2011, assault or that any such here—that recipients may be sexual harassment had previously occurred. At most, liable for their deliberate Plaintiff alleges that Temple was placed on notice of indifference to known acts of Cerett's propensity for violence as it related to his peer sexual harassment—does former male roommate. (Comp. ¶ 71). While Cerett's not mean that recipients can previous conduct, as alleged, was certainly abusive and avoid liability only by purging intimidating, this conduct was not directed at Plaintiff, their schools of actionable women, nor was it sexual in nature. To establish actual peer harassment or that notice for purposes of a hostile education environment administrators must engage in under Title IX, the prior action by Cerett must have particular disciplinary action ... been directed at Plaintiff or some other similar victim School administrators will because of her sex. Plaintiff's complaint contains no continue to enjoy the flexibility such allegations. As such, Plaintiff has not alleged they require so long as facts showing that Temple had actual knowledge of funding recipients are deemed any sexual harassment by Cerett. Therefore, Temple “deliberately indifferent” to could not have acted with deliberate indifference. acts of student-on-student harassment only where the [32] Plaintiff has also failed to assert a viable Title recipient's response to the IX claim against Temple based upon Cerett's alleged harassment or lack thereof is conduct between the January 21, 2011, incident and the clearly unreasonable in light of February disciplinary hearing, because Cerett's alleged the known circumstances. conduct does not constitute “sexual harassment ... Id. at 648, 119 S.Ct. 1661. The Court explained that that is so severe, pervasive, and objectively offensive in order to avoid liability, the school “must merely that it can be said to” have deprived Plaintiff “of respond to known peer harassment in a manner that is access to the educational opportunities or benefits not clearly unreasonable.” Id. at 649, 119 S.Ct. 1661. provided by the school.” Davis, 526 U.S. at 650, 119 The Court further stated that a “university might not ... S.Ct. 1661. What Plaintiff contends is that following

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 48 16 Frazer v. Temple University, 25 F.Supp.3d 598 (2014) 311 Ed. Law Rep. 665 the January 21, 2011, incident and pending the v. Birmingham Bd. of Educ., 544 U.S. 167, 173–74, disciplinary hearing, Cerett was permitted to remain 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). Thus, to on campus, and that during that time, he followed assert a viable claim for retaliation under Title IX, her, sat outside her dormitory, and “followed Frazer Plaintiff must plead facts sufficient to plausibly show into the cafeteria and stood directly beside her and that Temple “retaliated against [her] because [she] stared at her while she was having a conversation with complained of sex discrimination.” Id. at 184, 125 a fellow student.” (Comp. ¶¶ 99–104). According to S.Ct. 1497. Plaintiff must allege: (1) that she engaged Plaintiff, she reported Cerett's conduct to university in conduct protected by Title IX; (2) that Temple took security, but no corrective measures were taken prior adverse action against her; and (3) that a causal link to Cerett's disciplinary hearing. (Id. at ¶¶ 105–06). existed between the protected conduct and the adverse As alleged, Cerett's conduct, which can be viewed action. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, as that of a jilted boyfriend, does not amount to 201 (3d Cir.1994); Yan v. Penn State University, 529 sexual harassment or harassment of any kind that Fed.Appx. 167, 171 (3d Cir.2013); Cabrera–Diaz v. is sufficiently “severe, pervasive, and objectively Penn Kidder Campus Jim Thorpe Area School Dist., offensive” for liability to attach under Davis. Cf., 2011 WL 613383, at *4 (M.D.Pa. Feb. 11, 2011). O'Hara v. Colonia School Dist., 2002 U.S. Dist. LEXIS 12153, at *18–19 (E.D.Pa. Mar. 25, 2002) [37] As the basis of her retaliation claim, Plaintiff (holding that plaintiffs allegations that harassing alleges that Temple removed her from its volleyball student continued to follow and stare at plaintiff after team and revoked her athletic scholarship in May he was readmitted to school did not constitute the 2012 in retaliation for her complaint to Temple in requisite severe and pervasive sexual harassment for January and February 2011 as to Cerett's conduct. In Title IX liability); Bougher v. Univ. of Pittsburgh, its motion, Defendant argues that Plaintiff has failed to 713 F.Supp. 139, 146 (W.D.Pa.1989) (holding that allege facts sufficient to satisfy the third prong. Under allegations that defendant stared at plaintiff in public the third prong, Plaintiff must plead facts that could was not actionable harassment of any kind, including establish a causal connection between her protected sexual harassment). activity and Temple's adverse action. Marra v. Phila. Housing Auth., 497 F.3d 286, 300 (3d Cir.2007). To [33] Plaintiff has also failed to allege facts establish the requisite causal connection, Plaintiff must sufficient to establish that Temple exhibited deliberate allege facts to demonstrate either: “(1) an unusually indifference to her claims of sexual harassment. As suggestive temporal proximity between the protected alleged, a disciplinary hearing was held within a activity and the allegedly retaliatory action, or (2) a month of the incident, which resulted in Cerett being pattern of antagonism coupled with timing to establish suspended. (Comp. ¶¶ 94 and 97). In light of Temple's a causal link.” Cooper v. Menges, 541 Fed.Appx. 228, relatively prompt remedial action, Temple's conduct 232 (3d Cir.2013) (citations omitted). was not “clearly unreasonable,” as required by Davis for the imposition of Title IX liability. Davis, 526 U.S. In Clark County School Dist. v. Breeden, 532 U.S. at 648–49, 119 S.Ct. 1661. Therefore, Plaintiff's hostile 268, 273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001), educational environment claim is dismissed. the Supreme Court instructed that temporal proximity cannot support an inference of causal connection unless the alleged retaliatory action and the protected activity were “very close” in time, and that action taken *615 Plaintiff's Title IX Retaliation Claim twenty months after the protected activity “suggests, [34] [35] [36] Plaintiff also asserts a retaliation by itself, no causality at all.” See also Kriss v. Fayette claim under Title IX based upon Temple's action of County, 504 Fed.Appx. 182, 188–89 (3d Cir.2012) removing her from its volleyball team and revoking (holding passage of nine months between protected her athletic scholarship. Although Title IX does not activity and alleged retaliation insufficient to establish explicitly provide a cause of action for retaliation, the causation and stating “we have found, no cases where Supreme Court has interpreted Title IX's prohibition a gap of more than even two months was found to of sexual discrimination to include retaliation. Jackson be unusually suggestive.”); Wadhwa v. Sec'y Dep't

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 49 17 Frazer v. Temple University, 25 F.Supp.3d 598 (2014) 311 Ed. Law Rep. 665 of Veterans Affairs, 505 Fed.Appx. 209, 215–16 (3d Cir.1999); Eberts v. Wert, 1993 WL 304111, (3d Cir.2012) (holding passage of one year between at *5 (E.D.Pa. Aug. 9, 1993) (holding that “Courts protected activity and alleged retaliation insufficient to should ordinarily decline to exercise supplemental establish causation). jurisdiction over state law claims when the federal claims are dismissed.”). Here, as stated, Plaintiff simply alleges that Temple removed her from its volleyball team and revoked her athletic scholarship in May 2012 in retaliation for her Leave to Amend complaint to Temple in January and February 2011 about Cerett, more than a year earlier. (Comp. ¶¶ 114– [40] Although the Third Circuit has directed that 15, 150–51). Without more and under the case law a district court must ordinarily provide a civil rights cited, this Court cannot find that a 15–month gap is so plaintiff an opportunity to file an amended complaint “unusually suggestive” to raise Plaintiffs right to relief where the original complaint is subject to dismissal for Title IX retaliation “above the speculative level.” under Rule 12(b)(6), see Phillips, 515 F.3d at 245 Twombly, 550 U.S. at 555, 127 S.Ct. 1955. (reiterating the rule that leave to amend must be granted sua sponte in civil rights actions, “unless [38] As to demonstrating “a pattern of antagonism such an amendment would be inequitable or futile.”), coupled with timing to establish *616 a causal link,” it is this Court's view that any such attempt to Plaintiff must allege facts showing “actual antagonistic amend here would be legally futile. This Court has conduct or animus” in “the intervening period,” dismissed Plaintiff's civil rights claims against Temple, between the protected activity and the retaliation. not because Plaintiff has failed to provide a well- Kriss, 504 Fed.Appx. at 188 (citing Marra, 497 F.3d pleaded complaint, but rather, because the detailed at 302). Here, Plaintiff has not alleged any such facts set forth in her complaint fail as a matter antagonistic conduct or animus occurring between of law to establish a constitutional violation for the time she allegedly reported Cerett's conduct and purposes of § 1983 liability under either the “special the time she was removed from the volleyball team. relationship” or “state-created” danger exceptions. In Absent such allegations, this Court finds that Plaintiff addition, this Court cannot foresee any additional facts has failed to plead facts sufficient to suggest a causal that could overcome the 15 month period between connection between Plaintiff's protected activity and Plaintiff's alleged protected complaint under Title IX Temple's alleged retaliation. and Plaintiff's removal from the volleyball team and the revocation of her athletic scholarship. It is this Court's view, therefore, that any attempt to amend the Plaintiff's Remaining State Law Claims complaint would be futile.

[39] In the complaint, Plaintiff asserts various state law claims against Temple and Cerett. Plaintiff relies CONCLUSION upon supplemental jurisdiction to support this Court's For the foregoing reasons, Defendant's motion to jurisdiction over these state law claims. (See Comp. dismiss is granted, and Plaintiff's federal claims are at ¶ 4). Because this Court has dismissed all of dismissed with prejudice. An order consistent with this Plaintiff's federal claims over which it has original memorandum opinion follows. jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3), it declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims, including those ORDER remaining against Cerett. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d AND NOW, this 5th day of June 2014, upon 218 (1966) (“If the federal claims are dismissed before consideration of the motion to dismiss of Defendant trial, even though not insubstantial in a jurisdictional Temple University (“Defendant”), filed pursuant to sense, the state claims should be dismissed as well.”); Federal Rule of Civil Procedure 12(b)(6) [ECF 1–21], Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 Plaintiff's opposition thereto [ECF 1–27], Defendant's

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 50 18 Frazer v. Temple University, 25 F.Supp.3d 598 (2014) 311 Ed. Law Rep. 665 reply [ECF 1–28], Defendant's notice of supplemental (Counts IV through IX) are DISMISSED without authority *617 [ECF 11], the allegations contained prejudice. The Clerk of Court is directed to close this in the complaint [ECF 1–1], and for the reasons set matter for statistical purposes. forth in the accompanying memorandum opinion, it is hereby ORDERED that Defendant's motion to dismiss All Citations is GRANTED as to Counts I, II and II. It is further ORDERED that Plaintiff's remaining state law claims 25 F.Supp.3d 598, 311 Ed. Law Rep. 665

Federal courts strongly prefer open, public proceedings. “Identifying parties to [a] proceeding is 2014 WL 4375613 an important dimension of publicness. The people Only the Westlaw citation is currently available. have a right to know who is using their courts.” United States District Court, Doe v. Megless, 654 F.3d 404, 408 (3d Ci r.2011) E.D. Pennsylvania. (quoting Doe v. Blue Cross & Blue Shield United of John DOE, Plaintiff, Wis., 112 F.3d 869, 872 (7th Ci r.1997)); see also v. Fed.R.Civ.P. 10 (requiring the complaint and other pleadings to “name [ ] the parties”). Limited exceptions TEMPLE UNIVERSITY, Defendant. exist when a plaintiff can show he reasonably fears that Civil Action No. 14–04729. severe harm will result from having his or her name | attached to a lawsuit. See Megless, 654 F.3d at 408 Signed Sept. 3, 2014. (quoting Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1043 (9th Ci r.2010)). Attorneys and Law Firms However, “embarrassment or economic harm” are not recognized bases to conceal a litigant's identity. Id. Sidney L. Gold, Sidney L. Gold & Associates, PC, Philadelphia, PA, for Plaintiff. The Third Circuit enumerates nine factors for District Courts to consider when determining whether to allow a party to proceed under a pseudonym. Those weighing MEMORANDUM in favor of anonymity include:

ANITA B. BRODY, District Judge. (1) the extent to which the identity of the litigant has *1 Plaintiff John Doe (“Doe”) brings suit against been kept confidential; (2) the Defendant Temple University (“Temple”), asserting bases upon which disclosure is violations of civil rights, gender discrimination, and feared or sought to be avoided, breach of contract. I exercise jurisdiction pursuant to and the substantiality of these 28 U.S.C. §§ 1331, 1367. Currently before me is Doe's bases; (3) the magnitude motion to proceed under a pseudonym. For the reasons of the public interest in set forth below, I will deny Doe's motion. maintaining the confidentiality of the litigant's identity; (4) I. BACKGROUND whether, because of the purely On September 22, 2012, a Temple student was legal nature of the issues sexually assaulted. Temple determined that Doe was presented or otherwise, there responsible, and initiated disciplinary proceedings is an atypically weak public against him two days later. At the close of these interest in knowing the litigant's proceedings Temple expelled him. Doe brings suit identities; (5) the undesirability in this Court alleging that Temple violated its own of an outcome adverse to policies and procedures, failed to provide Doe with the pseudonymous party and sufficient notice of the charges and allegations against attributable to his refusal to hi m, denied him access to counsel, and denied him the pursue the case at the price of opportunity to confront his accuser in violation of his being publicly identified; and Due Process rights and enrollment agreement with the (6) whether the party seeking school. Pl.'s Mot. 3, ECF No. 2. Doe now moves for to sue pseudonymously has permission to proceed under a pseudonym. illegitimate ulterior motives.

Id. at 409. Against these factors, a court must weigh: II. Legal Standard

same conclusion, holding that diminished chances of (1) the universal level of acceptance into dental school because of expulsion for public interest in access to sexual assault did not warrant a pseudonym. See John the identities of litigants; (2) Doe v. Temple University, Civ. A 13–5156 (E.D.Pa. whether, because of the subject Aug. 7, 2014). matter of this litigation, the status of the litigant as a public Doe's arguments against an open proceeding are not figure, or otherwise, there is persuasive. Doe asserts that his identity has been kept a particularly strong interest in largely confidential and that he may not continue with knowing the litigant's identities, the case if this motion is denied. Pl.'s Mot. 8. Because beyond the public's interest Doe's complaint alleges violations of his constitutional which is normally obtained; and civil rights, the public would suffer if the suit and (3) whether the opposition was terminated prematurely. However, no matter how to pseudonym by counsel, sincere, a plaintiff's “refusal to litigate openly by itself the public, or the press is cannot outweigh the public's interest in open trials.” illegitimately motivated. Megless, 654 F.3d at 410–11. *2 Id. Finally, Doe maintains that even if the harm to him individually is insufficient that the public has a strong III. Discussion interest in allowing those falsely accused of sexual In this case, the potential harm to Doe and those assault to proceed anonymously. Those that have been similarly situated is not enough to outweigh the wrongly accused will be dissuaded from vindicating public's interest in an open proceeding. Sexual their rights in court because of the increased publicity assaults on college campuses, and the measures that accompanies a public proceeding. See Pl.'s Mot. 3. universities are taking to respond to these incidents, are important issues commanding national attention. Doe However, this prediction appears unfounded. There chose not to appeal Temple's decision internally, an are many examples of plaintiffs proceeding with option that would have limited public disclosure of his suits in their own names protesting sexual assault identity. Def's Resp. 2, ECF No. 9. Instead, he filed discipline from universities. See, e.g., Johnson v. suit in federal court to seek his exoneration. Because Temple Univ.-of Commonwealth Sys. OfHigher Educ., “one of the essential qualities of a Court of Justice [is] Civ. A. 12–515, 2013 WL 5298484 (E.D.Pa. Sept.19, that its proceedings should be public,” Doe's choice 2013), reconsideration denied, Civ. A. 12–515, 2014 comes with a consequence. Megless, 654 F.3d at 408 WL 3535073 (E.D.Pa. July 17 2014); Dempsey (quoting Daubney v. Cooper, 109 Eng. Rep. 438, v. Bucknell Univ., Civ. A. 4:11–cv–01 679, 2012 441 (K.B.1829). The dispute, and Doe's name, will WL 1569826 (M.D.Pa. May 3, 2012); Gomes v. contribute to the current debate about sexual assault Univ. of Me. Sys., 365 F.Supp.2d 6 (D.Me.2005); on college campuses. Fellheimer v. Middlebury Coll., 869 F.Supp. 238 (D.Vt.1994); Ruane v. Shippensburg Univ., 871 A.2d Moreover, Doe does not assert a cognizable harm. 859 (Pa.Commw.Ct.2005). Doe warns that allowing the public to connect his name with sexual misconduct would result in “further IV. Conclusion damage to his personal and professional reputation.” *3 Because the public interest in an open proceeding Pl.'s Mot. 7. Specifically, he alleges that he will likely outweighs the private interests seeking anonymity, I be unable to attend medical school unless his record will deny Doe's motion to proceed under a pseudonym. is cleared. Compl. 23–24, ECF No. 1; Pl.'s Mot 3. As discussed, this is exactly the kind of “embarrassment [and] economic harm” that does not support the use of a pseudonym. See Megless, 654 F.3d at 408. Judge ORDER Goldberg in this District has recently reached the

AND NOW, this 3rd day of September, 2014, it is ORDERED that Plaintiff John Doe's Motion for All Citations Permission to Proceed under a Pseudonym (ECF No. 2) is DENIED. Slip Copy, 2014 WL 4375613

1 Plaintiff also asserts, for the first time, in his Memorandum of Law in Opposition to KeyCite Blue Flag – Appeal Notification Defendant's Second Motion to Dismiss (Dkt. Appeal Filed by DOE v. UNIVERSITY OF No. 47), that his due process rights protected MASSACHUSETTS, 1st Cir., July 28, 2015 by the Fourteenth Amendment were violated 2015 WL 4306521 by the University. Pursuant to Fed.R.Civ.P. Only the Westlaw citation is currently available. 8(a), a complaint must include “a short and United States District Court, plain statement of the claim showing that the pleader is entitled to relief.” The purpose of this D. Massachusetts. requirement is to “give the defendant fair notice John Doe, Plaintiff, of what the ... claim is and the grounds on which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. v. 544, 555, (2007) (quoting Conley v. Gibson, 355 University of Massachusetts– U.S. 41, 47 (1957)). This requirement is not Amherst, Defendant. satisfied when a legal theory is advanced for the first time in an opposition to a defendant's Civil Action No. 14–30143–MGM motion to dismiss. See Car Carriers, Inc. v. Ford | Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984) Signed July 14, 2015 (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion Attorneys and Law Firms to dismiss.”). In ruling on Defendant's motion to dismiss, the court considers only those legal Andrew T. Miltenberg, Kimberly C. Lau, Nesenoff theories set forth in Plaintiff's complaint. & Miltenberg LLP, New York, NY, Matthew T. McDonough, Matthew T. McDonough, Attorney at Law, Somerville, MA, for Plaintiff. I. Background

Denise A. Barton, The University of Massachusetts, Plaintiff, an individual proceeding under the Shrewsbury, MA, for Defendant. pseudonym “John Doe,” was a student at the University during the fall of 2013. (Dkt. 1, Compl.¶ 1.) The University is a recipient of federal funds. (Id. ¶ MEMORANDUM AND ORDER ON 108.) On the evening of September 13, 2013 Plaintiff DEFENDANT'S MOTION TO DISMISS attended a party at a University residence hall. (Id. ¶ 24.) While at that party he met a woman, referred to MASTROIANNI, District Judge throughout as “Jane Doe.” (Id. ¶ 26.) John Doe and the University have presented very different versions *1 Plaintiff, a resident of Connecticut and a former of the events that followed. As the court is considering student at Defendant, University of Massachusetts— a motion to dismiss, it accepts as true the version Amherst (“the University”), has brought this action presented by John Doe. See Ashcroft v. Iqbal, 556 U.S. against the University alleging it violated Title IX of 662, 678, (2009). the Education Amendments of 1972, 86 Stat. 373, 20 U.S.C. § 1681(a) (2012) (“Title IX”) by applying disciplinary guidelines and regulations to Plaintiff in a A. Events of September 13–14, 2013 discriminatory manner on the basis of Plaintiff's sex. In Jane Doe approached Plaintiff around midnight. addition to this federal claim, Plaintiff asserts several (Dkt.1, Compl.¶ 26.) Plaintiff and Jane Doe engaged claims pursuant to Massachusetts law. 1 Before the in conversation with one another, both spoken and court is Defendant's Motion to Dismiss for Failure to via text message; they watched videos together; and State a Claim (Dkt. No. 17). For the reasons set forth Plaintiff noticed that as he moved from one location below, the motion is ALLOWED. to another, Jane Doe pursued him. (Id. ¶ 27.) Plaintiff consumed alcohol at the party, but he did not notice whether Jane Doe was also consuming alcohol. (Id.

¶ 26.) At no point during the evening did Plaintiff indicated that she did not know how to classify what observe Jane Doe showing signs of intoxication. (Id. ¶ had happened. (Id. ¶ 44.) 28.) Plaintiff observed her speech to be coherent and intelligible and her text messages to include correct On September 18, 2013, the University notified spelling, grammar, and punctuation. (Id. ¶ 28.) Plaintiff that he had been charged with four violations of the University's Code of Student *2 At approximately 2:00 a.m., Jane Doe texted her Conduct (the “Code”): Threatening Behavior, Sexual roommate, who was not attending the party, to request Harassment, Sexual Misconduct, and Community the private use of their shared room. (Id. ¶ 29.) When Living Standards. (Id. ¶ 45.) The University's her roommate texted back to ask whether Jane Doe Code sets out community standards and procedures intended to spend the night with someone she had just governing the enforcement of those community met, Jane Doe responded with texts stating “ ‘it's all standards. (Id. ¶¶ 17–21.) Among its many provisions, good,’ that she was ‘fine,’ and that she was not ‘drunk the Code provides that a student's responsibility for that much anymore.’ ” (Id.) Jane Doe and Plaintiff the consequences of his or her actions shall not be then made their way to Jane Doe's dorm room. (Id. limited because the actions were consequences of ¶ 30.) With the agreement of Jane Doe, Plaintiff first voluntary consumption of alcohol or drugs. (Id. ¶ 18.) stopped by his dorm room to get a condom. (Id.) He The Code, which is updated annually, also defines then met Jane Doe in her dorm room and the two “sexual misconduct” to include sexual contact with a became intimate. (Id. ¶¶ 32–33.) Plaintiff asked and person who is (1) so intoxicated as to be incapable obtained permission prior to each new act, such as of understanding or unaware of the sexual contact removing an article of clothing or touching a part of or (2) otherwise physically incapable of resisting or Jane Doe's body. (Id. ¶ 34.) Around 4:40 a.m. Plaintiff communicating consent. (Id. ¶ 21.) and Jane Doe finished engaging in sexual activity. (Id. ¶ 36.) Jane Doe excused herself to use the shower In addition to learning about the charges against him, and Plaintiff returned to his dorm room. (Id. ¶¶ 37– Plaintiff also learned the University had determined 39.) As he considered the extent of his sexual contact he was a threat. (Id. ¶ 47.) He was ordered to have with Jane Doe, Plaintiff became concerned they had no contact with Jane Doe and he was banned from not been as careful as they should have been. (Id. ¶ campus for all purposes other than attending classes. 39.) He texted Jane Doe to suggest she consider taking (Id.) The University gave him less than eight hours medication to prevent pregnancy. (Id.) Plaintiff then to leave campus. (Id.) In order to continue attending went to sleep. (Id. ¶ 40.) When he woke up he saw class, Plaintiff had to drive two hours, each way, from Plaintiff had not responded to his text and so he sent his family's home in Connecticut. (Id. ¶ 54.) Plaintiff her another text. (Id. ¶ 41.) Plaintiff had hoped that his was also notified that he was entitled to access the night with Jane Doe might have been the beginning of on-campus Counseling & Psychological Services, but a dating relationship and was disappointed when the he was not initially advised that he could access the responses he received from Jane Doe indicated she was University Student Legal Services for assistance with not interested in pursuing a relationship with him. (Id.) his disciplinary matter. (Id. ¶ 49.) Additionally, he was never informed the University employed a Title IX Coordinator from whom he could seek assistance. (Id. B. The Complaint Against Plaintiff and the ¶ 50.) Immediate Impact on Plaintiff When Jane Doe awoke on September 14, she began Upon learning of the charges against him, Plaintiff texting with some friends, claiming she could not tried to obtain a physical exam and STD testing at recall the events of the prior night. (Id. ¶ 42–43.) University Health Services and was denied care. (Id. At the urging of her friends, Jane Doe went to the ¶ 52.) Plaintiff was told University Health Services University Health Services on September 14, 2013 “had never been in this situation before and ‘were not and on September 15, 2013 she made a report to the equipped to handle this.’ ” (Id.) The complaint does Dean of Students Office. (Id. ¶ 43.) In that report, Jane not include what, if any, explanation was given as to Doe did not use the words “harassment,” “assault,” or “rape” to describe her encounter with Plaintiff and

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 56 2 Doe v. University of Massachusetts-Amherst, Slip Copy (2015) the nature of the situation that prevented the University on the night of the party and whether she remembered Health Services from providing care. texting with John Doe, were not approved. (Id.)

C. The University's Initial Handling of the Complaint D. Plaintiff's Disciplinary Hearing Against Plaintiff A Student Conduct Hearing Board proceeding was *3 Plaintiff asserts the University did not undertake held on November 5, 2013 and an audio recording “any material investigation” into the charges made was made. (Id. ¶¶ 60–69.) The Student Conduct against him and did not even interview witnesses or Hearing Board included a chairperson and three investigate Jane Doe's level of intoxication on the members, one of whom was a student. (Id. ¶ 61.) night of September, 13–14, 2013. (Id. ¶ 53.) The Plaintiff alleges the chairperson was rude to him University did not assign a specially trained Title throughout the proceeding, asking him confusing IX investigator to conduct the investigation, which questions and then becoming frustrated with him when Plaintiff characterizes as disorganized and chaotic. he sought clarification of the questions, interrupting (Id. ¶ ) Information was gathered by several different him, and alternating between belittling his answers and University officials, none of whom had proper training appearing to not listen to those answers. (Id. ¶ 63.) to deal with sexual misconduct or the effects of alcohol In contrast, Plaintiff asserts the chairperson questioned consumption. (Id.) Jane Doe in a supportive manner. (Id. ¶ 64.)

On September 26, 2013, Plaintiff received a packet of Additionally, some of the questions Plaintiff wished to documents from the University which he understood have asked of Jane Doe were not asked and the Student to be the investigation file. (Id. ¶ 57.) The documents Conduct Hearing Board did not ask other questions included statements by Plaintiff and Jane Doe, copies of Jane Doe and her witnesses that Plaintiff believes of text messages between Plaintiff and Jane Doe, were essential for the Student Conduct Hearing Board notes from meetings between Plaintiff and two to fully understand what had happened. (Id. ¶ 65.) University administrators, and emails from Plaintiff For example, Jane Doe was not questioned about to the University regarding the incident. (Id.) As the the information she provided during the hearing, her time for Plaintiff's Student Conduct Hearing Board use of anti-depressants, or any possible side-effects approached, Plaintiff came to believe there were other she might have experienced as a result of mixing documents relevant to the charges. (Id. ¶ 58.) He alcohol and anti-depressants. (Id.) Additionally, Jane requested the University provide him with all relevant Doe's roommate testified about Jane Doe's level of documents by email on October 31, 2013, less than a intoxication, but was not asked questions about the week before the hearing was scheduled to take place. basis for her knowledge, even though she had not (Id.) That same day, in response to his email, he attended the party or seen Jane Doe until the following received copies of text messages between Jane Doe morning. (Id. ¶ 66.) Plaintiff was also prevented from and her roommate and email statements from Jane presenting documentary evidence regarding typical Doe's roommate and two others, including the host of effects of blood alcohol content, which he believed the party where Plaintiff met Jane Doe, all of which contradicted Jane Doe's testimony. (Id. ¶ 64.) were dated October 31, 2013. (Id.) Plaintiff continues to believe the University had not provided him with all *4 Two days after the hearing, the Student Conduct the relevant documents it had related to his case and Hearing Board issued its report and concluded Plaintiff which could have assisted his defense. (Id. ¶ 59.) was responsible for three violations of the Code. (Id. ¶ 74.) The sanction imposed was expulsion. (Id. ¶ While preparing for his hearing, Plaintiff also prepared 82.) Plaintiff appealed the decision. (Id. ¶ 84.) In a list of questions for the Student Conduct Hearing preparation for filing his appeal, Plaintiff reviewed Board to ask Jane Doe. (Id. ¶ 55.) He was required the hearing board's report and made arrangements to submit those questions to a dean for preapproval. to listen to the recording of the hearing. (Id. ¶ 85.) (Id.) When he did so, some of his questions, including When he listened to the recording, Plaintiff discovered questions about how much alcohol Jane Doe consumed the portion of the hearing during which Jane Doe's roommate had testified had not been recorded. (Id.)

him. (Id. ¶ 93.) Plaintiff claims this answer was nonresponsive because he had clearly requested all E. Post–Hearing Proceedings relevant materials, whether or not they were in his Plaintiff appealed the Student Conduct Hearing conduct file. (Id.) The University ultimately responded Board's decision on November 18, 2013, giving at to Plaintiff's requests over a period of, at least, nine least six grounds. (Id. ¶ 88.) First, he asserted the months, but as of the date of his complaint, Plaintiff University had failed to fully and fairly conflict check still believed the University had not provided all the members of the Student Conduct Hearing Board relevant documents to him. (Id. ¶ 96.) and one student member had a conflict because she had previous exposure to criminal prosecution as a student Several days after his appeal was denied, Plaintiff intern in the office of the Suffolk District Attorney. filed his own complaint against Jane Doe accusing her (Id.) Next, Plaintiff argued the members of the Student of harassing him. (Id. ¶ 70.) Without specifying the Conduct Hearing Board had not all received proper factual basis for his harassment complaint, Plaintiff training for deciding cases involving allegations of asserts the University did not adequately respond to sexual misconduct and the effects of alcohol. (Id.) his complaint. (Id. ¶ 71.) Specifically, he says the His third basis for his appeal was the incomplete University did not contact him about his complaint audio recording of the hearing. (Id.) The fourth ground and, even after he requested status updates, he did identified by Plaintiff was the hearing board's failure not receive any information. (Id.) Eventually, Plaintiff to ask Jane Doe questions about the extent of her submitted a public records request for documents alcohol use and any use of antidepressants. (Id.) Fifth, related to the University's response to his complaint. Plaintiff argued the hearing board had inaccurately (Id. ¶ 72.) About two months later, the University characterized witness statements concerning details provided him with information about the fees for staff from the evening preceding the contested sexual time and photocopying associated with obtaining the encounter. (Id.) Sixth, and finally, Plaintiff asserted the documents he had requested. (Id. ¶ 73.) Plaintiff does Student Conduct Hearing Board had inappropriately not indicate whether he ever obtained any related relied on testimony from Jane Doe's roommate because documents from the University. it had been established she lacked personal knowledge concerning the events preceding the contested sexual *5 In addition to describing the lack of information encounter. (Id.) provided to him with respect to his harassment complaint against Jane Doe, Plaintiff notes that Jane Plaintiff's appeal was denied approximately one month Doe was never charged with a violation of the Code of after the initial hearing took place. (Id. ¶ 89.) Both Student Conduct in connection with her consumption the Student Conduct Hearing Board's finding he was of alcohol on the night of September 13–14, 2013. responsible for violations of the Code and its sanction (Id. ¶ 74.) He characterizes the University's treatment of expulsion were upheld. He received a short letter of Jane Doe's complaint and its failure to charge her informing him of the outcome of the appeal, but not with a violation due to her consumption of alcohol as providing an explanation of, or any details about, the “preferential treatment” when compared to the way his basis for the decision. (Id.) complaint of harassment was treated and the fact that he was charged and disciplined with misconduct in connection with Jane Doe's report. (Id. ¶ 75.) Based on F. Plaintiff's Post–Appeal Efforts this characterization, Plaintiff asserts the “preferential After his appeal was denied, Plaintiff came to believe treatment” was “undeniably linked” to Jane Doe's he had not been given all of the documents in the gender. (Id.) Though the court accepts as true the possession of the University related to his disciplinary factual allegations set forth by Plaintiff, it does not proceeding. (Id. ¶ 91.) Between December 2013 and accord the same weight to these conclusory statements. May 2014, he made five formal public records requests See Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). seeking additional documents from the University. (Id. ¶ 92.) In response to his first request, the University sent a statement affirming everything in Plaintiff's student conduct file had already been provided to

28 (1st Cir.2014). Plaintiff argues that various actions of the University indicate it has consented to suit in II. Legal Standard federal court on state law claims to the extent the state A party moving to dismiss an action pursuant to law claims are related to Title IX claims, but these Rule 12(b)(6) has the burden of demonstrating the actions fall short of the type of express language or complaint lacks “sufficient factual matter” to state a overwhelming implication that signals a state's consent claim for relief that is actionable as a matter of law to waive its immunity. Id. and “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 “Judges in this District have consistently held that (2007)); Fed.R.Civ.P. 12(b)(6). The court must accept [the University] and its departments and agencies are all well-pleaded facts as true and draw all reasonable arms of the state entitled to Eleventh Amendment inferences in favor of a plaintiff, but “[t]hreadbare immunity.” BT INS, Inc. v. Univ. of Mass., No. 10– recitals of the elements of a cause of action, supported 11068, 2010 WL 4179678 (D.Mass. Oct. 19, 2010) by mere conclusory statements, do not suffice” to (citing cases). The First Circuit has not ruled on the state a plausible claim for relief. Id. The moving party issue, but has declined the opportunity to reach a must show that the other party's assertions fall short different conclusion. Neo Gen. Screening, Inc., 187 of establishing “each material element necessary to F.3d at 27. Plaintiff has not presented the court with sustain recovery under some actionable legal theory.” contrary authority, and the court has found no reason Centro Medico del Turabo, Inc. v. Feliciano de not to adopt the approach taken by the other courts in Melecio, 406 F.3d 1, 6 (1st Cir.2005) (internal citation this district which have found the University to be an omitted).Where jurisdiction is based on diversity, the arm of the state. Therefore, this court concludes the court must look to Massachusetts law for the elements Eleventh Amendment bars all of Plaintiff's state-law of Plaintiff's claims. See Edlow v. RBW, LLC, 688 F.3d claims against the University. Having concluded this 26 (1st Cir.2012). court lacks jurisdiction over those claims, the court dismisses all of Plaintiff' state law claims asserted in Counts II through VII of the complaint.

III. Analysis B. Title IX —Count I A. Eleventh Amendment—Counts II–VII *6 Congress validly abrogated “States' Eleventh Each of the seven counts in Plaintiff's complaint Amendment immunity under Title IX,” as to entities is brought solely against the University. The first receiving federal funds. Gebser v. Lago Vista Indep. count alleges violations of Title IX, while the other Sch. Dist., 524 U.S. 274, 284 (1998) (citing 42 counts allege violations of state law. Defendant U.S. § 2000d–7). As a recipient of federal funds, argues the Eleventh Amendment deprives this court the University is thus subject to suit under Title of jurisdiction to consider all of Plaintiff's state-law IX. Plaintiff alleges the University violated Title IX claims because the University is an agency of a by denying him, on account of his sex, a “prompt state. Pursuant to the Eleventh Amendment, citizens and equitable” resolution to Jane Doe's complaint. cannot normally sue a state or an arm of a state in (Dkt.1, Compl.¶¶ 111–124.) Specifically, he asserts federal court. Neo Gen Screening, Inc. v. New England the University's adjudication of the allegations was Newborn Screening Program, 187 F.3d 24, 26 (1st biased against him because of his sex and, as a Cir.1999). Suits are permitted if the state has waived its result, the process reached an incorrect conclusion. immunity or Congress has acted to override immunity, (Id. ¶ 122.) Additionally, he asserts that regardless of but the burden is on the plaintiff to demonstrate one whether he should have been found responsible for of these exceptions applies. Id. “[A] state can waive violations of the Code, bias due to his male sex caused its immunity by clear declaration that it intends to him to receive a disproportionately harsh sanction. (Id. submit itself to the jurisdiction of a federal court, by ¶ 120.) participating in a federal program that requires waiver of immunity as an express condition, or by affirmative “Title IX prohibits gender-based discrimination in litigation conduct.” Davidson v. Howe, 749 F.3d 21, a wide array of programs and activities undertaken

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 59 5 Doe v. University of Massachusetts-Amherst, Slip Copy (2015) by educational institutions.” 2 Frazier v. Fairhaven receiving resources equal to those provided to the boys' Sch. Comm., 276 F.3d 52, 65 (1st Cir.2002). In team); Cannon, 441 U.S. 677 (ruling plaintiff had relevant part, Title IX provides that “[n]o person adequately pled that defendant's decision to deny her in the United States shall on the basis of sex, admission violated Title IX); Cohen v. Brown Univ., be excluded from participation in, be denied the 991 F.2d 888 (1st Cir.1993) (affirming preliminary benefits of, or be subjected to discrimination under injunction to prevent cuts to athletics program that any education program or activity receiving Federal would preserve and slightly increase the disproportion financial assistance.” 20 U.S.C. § 1681(a). Title IX between athletic opportunities for female students and is a broadly applicable civil rights statute that bars their representation in the student body). A plaintiff discrimination on the basis of sex and is “patterned seeking to establish a Title IX violation based on this after Title VI of the Civil Rights Act of 1964,” type of discrimination must allege that members of which barred racial discrimination by employers and the disadvantaged gender were disparately impacted educational institutions. Cannon v. Univ. of Chicago, and also must present “some further evidence of 441 U.S. 677, 694 (1979). When Congress passed discrimination.” Cohen, 991 F.2d at 895. Title IX, it had “two principal objectives in mind: ‘[T]o avoid the use of federal resources to support *7 In a separate line of cases, courts have ruled, discriminatory practices' and ‘to provide individual because sexual harassment by teachers or other citizens effective protection against those practices.’ ” students can create a sexually hostile educational Gebser, 524 U.S. at 286 (quoting Cannon, 441 U.S. at environment, Title IX also provides a remedy in 704). cases where a school responds to allegations of sexual harassment with deliberate indifference. In these cases, the plaintiff need not assert they are 2 Though Title IX prohibits discrimination “on the a member of a disadvantaged gender, or even basis of sex,” the First Circuit's substitution of that there is a disadvantaged gender. Instead, Title the word gender indicates its understanding that Title IX, like Title VII, prohibits discrimination IX provides a remedy in cases where a school's on the basis of either a person's biological sex or response to sexual harassment demonstrates deliberate the person's gender identity. Frazier v. Fairhaven indifference, regardless of the sex or gender of any Sch. Comm., 276 F.3d 52, 65 (1st Cir.2002) student or teacher involved. See Davis v. Monroe Cnty (using gender and sex interchangeably in the Bd. of Educ., 526 U.S. 629 (1999); see also Frazier, context of Title IX); see also Price Waterhouse 276 F.3d 52. Thus, one line of Title IX cases concerns v. Hopkins, 490 U.S. 228, 239 (1989) (using itself with differential treatment of individuals based gender and sex interchangeably in the context of on their status as a member of a disadvantaged Title VII); Miller v. New York Univ., 979 F.Supp. gender, while another line of cases concerns itself with 248 (S.D.N.Y.1997) (ruling Title IX prohibition the efforts schools take to ensure that all students, on discrimination on the basis of sex applied in regardless of gender, are fairly protected from sexual case where plaintiff's biological sex and gender harassment. identity differed).

Within the context of Title IX, prohibited The Department of Education (the “Department”), discrimination occurs when an individual is “subjected through its Office of Civil Rights, has published to differential treatment ... on the basis of sex.” guidance for schools regarding the actions schools Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, should take in response to allegations of sexual 174 (2005). There is a long line of Title IX cases in harassment., a phrase the Department defines to which plaintiffs have alleged they received different include acts of sexual violence. 3 Russlyn Ali, Dear treatment as a member of a “disadvantaged gender” Colleague Letter, U.S. Dept. of Educ. at 1 (Apr. or in retaliation for advocating on behalf of members 4, 2011), available at http:// www2.ed.gov /about/ of a disadvantaged gender. See, e.g., id. (ruling male offices/list/ocr/letters/colleague–201104.pdf. Sexual coach of high school girls' basketball team could violence includes “physical sexual acts ... where a bring retaliation claim under Title IX because he person is incapable of giving consent due to a victim's was allegedly retaliated against on the “basis of sex” use of ... alcohol.” Id. Pursuant to this guidance, a where he had complained the girls' team was not

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 60 6 Doe v. University of Massachusetts-Amherst, Slip Copy (2015) school is required to respond when it “knows, or with the complainant; a hearing officer or disciplinary reasonably should know, about possible harassment” board should not allow only the alleged perpetrator to of a student, regardless of whether the harassed student present character witnesses at a hearing; and a school actually makes a complaint. Id. This obligation does should not allow the alleged perpetrator to review not arise because of the student's gender, but because the complainant's statement without also allowing the school has notice that the student may have been the complainant to review the alleged perpetrator's subjected to sexual contact to which the student did not statement.”). A school that fails to provide equitable or could not consent. grievance procedures to a complainant may violate Title IX if its failure is part of a larger pattern 3 This court “must accord [the Department's] of “deliberate indifference.” The question raised by interpretation of Title IX appreciable deference.” Plaintiff's complaint is when, if ever, a student Cohen v. Brown Univ., 991 F.2d 888, 895 (1st disciplined after being found responsible for sexual Cir.1993). harassment sufficiently asserts a Title IX claim based In responding to claims of sexual harassment, on alleged deficiencies with the school's disciplinary the University, like all schools, is directed by proceeding against that student. the Department to use the “preponderance of the evidence” standard of proof, requiring a finding that *8 Though Plaintiff's case is one of many similar 4 an accused is responsible if “it is more likely than cases in which male students assert that a school's not that sexual harassment or violence occurred.” Id. response to a sexual harassment complaint was biased at 11. The Department cautions that use of a higher against the alleged perpetrator because of his gender, standard of proof such as “clear and convincing,” the First Circuit has not yet had occasion to analyze the under which a party would be found responsible only sufficiency of a complaint in this type of case. Lacking if the evidence demonstrated it was “highly probable guidance from the First Circuit, this court turns to the or reasonably certain that the sexual harassment or analytic framework set forth by the Second Circuit in violence occurred,” is “inconsistent with the standard Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.1994). of proof established for violations of ... civil rights The plaintiff in Yusuf, like Plaintiff here, was a male laws” like Title IX. Id. The choice of standard in the college student who was disciplined after a college case of Title IX and other civil rights statutes reflects a hearing board found him guilty of sexually harassing policy decision that impacts both the complainant and a female student. Looking to the “analogous bodies of alleged perpetrator. As a practical matter, the choice of law” interpreting Title VI and Title VII, the Second standard may tip the scale in favor of the complainant Circuit concluded “that Title IX bars the imposition in cases where testimony from both parties is credible. of university discipline where gender is a motivating factor in the decision to discipline.” Yusuf at 715. Plaintiff does not dispute Title IX required the University to respond to Jane Doe's complaint, but he 4 See, e.g., Bleiler v. Coll. of the Holy Cross, No. asserts that as to him, the response did not comply 11–11541, 2013 WL 4714340 (D.Mass. Aug. with the Department's guidance and was biased against 26, 2013) (addressing complaint of male student him as a male, thereby violating Title IX. Although the disciplined for sexual harassment asserting Department's guidance “requires schools to provide college disciplinary proceeding against him was equitable grievance procedures” when responding motivated by gender bias in violation of Title IX); to possible sexual harassment, the purpose of this Doe v. Columbia Univ., No. 14–cv–3573, 2015 requirement is to protect those students who may have WL 1840402 (S.D.N.Y. Apr. 21, 2015) (same); Yu v. Vassar Coll., No. 13–cv–4373, 2015 WL been subjected to sexual harassment in order to prevent 1499408 (S.D.N.Y. Mar. 31, 2015) (same). schools from acting with deliberate indifference to allegations of sexual harassment. See e.g., Id. (“[A] The Second Circuit identified the plaintiff's complaint school should not conduct a pre-hearing meeting as attacking his disciplinary proceeding in two ways: during which only the alleged perpetrator is present (1) asserting the outcome was erroneous due to and given an opportunity to present his or her side “evidentiary weaknesses” or “particular procedural of the story, unless a similar meeting takes place flaws” and (2) alleging selective enforcement

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 61 7 Doe v. University of Massachusetts-Amherst, Slip Copy (2015) evidenced either by the severity of the penalty Columbia Univ., No. 14–cv–3773, 2015 WL 1840402 imposed or the fact that the disciplinary process at *12 (S.D.N.Y. Apr. 21, 2015) (applying the Yusuf was initiated at all. Id. at 715. As to the first analysis). Plaintiff has not cited examples of any theory, the Second Circuit examined the complaint for comments that targeted him based on his gender— allegations of “particular facts sufficient to cast some as opposed to his status as a student accused of articulable doubt on the accuracy of the outcome of the sexual assault—or any conduct suggestive of gender disciplinary proceeding.” Id. In addition, the Second bias. “Indeed the alleged treatment could equally Circuit required “a particularized allegation relating have been—and more plausibly was—prompted by to a causal connection between the flawed outcome lawful independent goals, such as a desire (enhanced, and gender bias.” 5 Id. Similarly, with respect to the perhaps, by the fear of negative publicity or Title second theory, the Second Circuit looked for both IX liability to the victims of sexual assault) to take factual allegations demonstrating an inconsistency in allegations of rape on campus seriously and to treat enforcement and a causal connection to gender bias. Id. complainants with a high degree of sensitivity.” Id. (internal quotations omitted) (citing Twombly).

5 The court notes that Yusuf was decided prior *9 Though he asserts that “male respondents in to the Supreme Court's Iqbal and Twombly sexual misconduct cases at [the University] are decisions and so when the Second Circuit examined the sufficiency of the complaint in discriminated against solely on the basis of sex” Yusuf it applied the prior, more relaxed, standard and are “invariably found guilty, regardless of with respect to the sufficiency of the factual the evidence, or lack thereof[,]” these statements allegations. are unsupported by even minimal data or credible anecdotal references; they are the type of conclusory Turning to Plaintiff's complaint, the court finds claims statements that Iqbal and Twombly do not allow the fitting within both of the categories set out in Yusuf, court to consider. (Dkt. No. 1, Compl.¶ 122.) Plaintiff's but insufficient factual allegations that would entitle suggestion that bias is evidenced because the Student Plaintiff to relief with respect to either of them. Conduct Hearing Board credited Jane Doe's testimony As to “erroneous outcome,” Plaintiff has set forth a rather than his own ignores the fact that the standard version of the events of September 13–14 and the of proof used was the “preponderance of the evidence” disciplinary proceeding which is inconsistent with standard. In the absence of specific factual allegations the hearing board's ruling against him. On the night from which a factfinder could plausibly infer the in question, Plaintiff asserts he received affirmative influence of gender bias on the outcome of Plaintiff's consent from Jane Doe as to all sexual contact and disciplinary proceeding, that portion of his Title IX there were no clues in her conduct indicating she claim is dismissed. was so intoxicated as to be unable to give consent. With respect to the disciplinary proceeding, Plaintiff The portion of Plaintiff's claim asserting selective points to difficulties getting information, deficiencies enforcement must also be dismissed for similar in the investigation, limits placed on his ability reasons. As discussed above, Plaintiff has not pled to cross-examine witnesses, the exclusion of some facts from which a plausible inference of gender bias documentary evidence he wished to introduce, and the can be drawn. In addition, with respect to the selective misuse of witness testimony by the hearing board. He enforcement claim, Plaintiff has not alleged any facts also asserts the student member of the hearing board indicating male and female students accused of sexual had a conflict due to an earlier internship within a harassment are treated differently by the university in criminal prosecutor's office. Taken together, the facts terms of the way complaints are pursued or discipline alleged by Plaintiff are sufficient to raise at least 6 some questions about the outcome of his disciplinary is imposed. Therefore, the court also dismisses that proceeding. They may even accurately reflect that portion of Plaintiff's Title IX claim asserting selective the University “treated Jane Doe more favorably enforcement based on his gender. than Plaintiff during the disciplinary process,” but they are insufficient to suggest “that the disparate treatment was because of Plaintiff's sex.” Doe v.

6 bias against any person merely accused, causing the Plaintiff alleges he filed a harassment complaint disciplinary process to deviate from the Department's against Jane Doe, but he does not describe the guidelines, it would not, on its own, violate Title complaint as alleging sexual harassment. IX. Plaintiff's allegations are simply not sufficiently detailed or specific; conclusory, threadbare assertions IV. Conclusion will not survive a dismissal challenge. Here, Plaintiffs allegations are not articulated in a way to support a “Plaintiff's subjective belief that he was the victim of plausible inference that the University's actions with discrimination—however strongly felt—is insufficient respect to Plaintiff violated Title IX. to satisfy his burden at the pleading stage.” Doe v. Columbia Univ. at *11. At this stage of the litigation, For the Foregoing reasons, Defendant's Motion to having accepted the assertions pled as true, the court Dismiss is hereby ALLOWED. recognizes Plaintiff's perception that the disciplinary process was stacked against him. On the other hand, It is So Ordered. none of the facts pled in his complaint indicate his disciplinary proceeding was tainted by gender bias, as opposed to bias against those accused of All Citations sexual harassment in violation of the University's Slip Copy, 2015 WL 4306521 Code. Even if there was that type of regrettable

38 J. Legal Prof. 25

Journal of the Legal Profession Fall 2013

Article

GIVING CREDIT WHERE CREDIT ISN'T DUE (PROCESS): THE RISKS OF OVEREMPHASIZING ACADEMIC MISCONDUCT AND CAMPUS HEARINGS IN CHARACTER AND FITNESS EVALUATIONS

Veronica J. Finkelstein

Notwithstanding the plethora of jokes about sharks and lawyers, 1 it has long been a requirement that bar applicants both possess “good moral character” and demonstrate this good character to the bar prior to admission. 2 Each state bar must evaluate applicant character. Yet character is, in many ways, wholly subjective. Aside from other ethical and legal concerns raised by this type of subjective evaluation, a particular concern arises when prior academic misconduct or campus sexual assault forms the basis of a character evaluation. Given the paucity of due process protections provided in the academic setting, it is alarming that the outcome of campus hearings may result in a denial of admission to the bar for failure to demonstrate good moral character.

I. The History of the Character Requirement

The historical roots of the character requirement date back to nearly the beginning of law as an organized profession in the United States. 3 For example, colonial lawyers were required to meet certain character requirements before they were authorized to practice law in the burgeoning new country. 4 The character requirement remained in place thereafter and *26 became more formalized at the end of the nineteenth century. 5 At that time, the American Bar Association (the “ABA”) was founded to regulate the practice of law in the United States. 6

In 1906, the ABA drafted its first set of bar admission rules. 7 These rules were subsequently approved in 1918. 8 The ABA rules required that there “be an examination by the board as to the moral character of each applicant for admission to the bar, which examination should be in addition to the requirement of certificates as to his moral character, and in addition to . . . educational qualifications.” 9 In sum, pursuant to the ABA rules, not only did bar applicants have to certify their good character, but the bar of the state of admission was required to undertake an independent analysis into the character of each applicant.

With this requirement in place, the evaluation process for reviewing applicant character became more systemized. By 1920, many states had developed character committees. 10 These committees were tasked primarily with evaluating the character of bar applicants and practicing attorneys. 11 By 1927, a majority of all states required that applicants submit a formal application for review by the state's character committee as part of the admission process. 12 Although the process of evaluating applicant character certainly predated this time period, by the 1930s the process of evaluating applicant character became a more regular and uniform process with a specified procedure in many states.

In significant part, this procedure is utilized today. Although each state may set its own unique qualifications for bar admission, 13 all states require *27 that bar applicants meet specified “character and fitness” requirements. 14 Merely passing a bar examination is not sufficient in any state; applicants must also have good character to join the ranks of practicing attorneys. 15 As part of their applications to the bars of any state, applicants must certify their good moral character. 16 Thereafter, the state's bar examiners may either accept any individual applicant's certification, or the bar may further inquire into an applicant's character. 17

To provide bar examiners with the necessary information to inquire into character, each bar applicant is required to complete an extensive application and submit information to the bar examiners in the state where the applicant seeks admission. 18 Although each state has its own unique application questions, these questions are generally designed to elicit information that would reveal any past history of dishonesty or criminality. 19 The verbiage and specific questions may have changed over the years, but the substance of these “character and fitness” inquiries has varied little over time.

II. Defining Good Character

Given the longstanding nature of the character and fitness evaluation, one might reasonably assume that the definition of good moral character has been well solidified. To the contrary, the definition of good moral character has varied widely over the years. Initially, the character *28 requirement was used to exclude applicants based on race, sex, and ethnicity. 20 In later years, the requirement was used to exclude applicants who maintained unpopular political affiliations or beliefs. 21

Over time, applicants successfully challenged these definitions of good moral character. 22 The exclusion of applicants based on their political affiliation and beliefs was addressed by the United States Supreme Court in Schware v. Bd. of Bar Examiners of N.M., where the Court held that an applicant could not be excluded from the bar based on his status as a former member of the Communist Party. 23 In so holding, the Court noted that “a [s]tate can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law.” 24 As a result of the Schware decision, a state cannot exclude an applicant from the bar for reasons irrelevant to the practice of law, such as political affiliation or sexual orientation. 25

Cases like Schware and its progeny have helped define what lies outside the boundaries of good moral character. These cases are less instructive, however, when one tries to clarify the definition of what character lies inside the boundaries. Today, there is still no uniform definition of the term “good moral character,” and states vary as to their interpretation and application of the term. 26

*29 Although there is a divergence of state practice, there have been attempts to reach a consensus as to the definition of good moral character. In 1987, the ABA promulgated a set of “Character and Fitness Standards” to more clearly define good moral character. 27 These standards define good moral character as follows: A lawyer should be one whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them. A record manifesting a significant deficiency in the honesty, trustworthiness, diligence or reliability of an applicant may constitute a basis for denial of admission. 28

The standards further delineate thirteen categories of “relevant conduct” that, if present, suggest that an applicant lacks good moral character. These categories include, among others, an applicant's prior unlawful conduct and academic misconduct. 29

Even after the promulgation of these standards, the definition of good moral character continues to be defined on a state-by-state basis. Each individual state is free to adopt or reject the ABA standards. 30 Although most states have incorporated similar categories into their own definitions, many states continue to utilize their own separate standards for the purpose of evaluating applicants to the bar. 31

As a result, today there still is no universally-accepted definition of what “good moral character” is sufficient for bar admission. 32 To the contrary, good moral character remains difficult to define, leading the United States Supreme Court to characterize the concept as “ambiguous” with an “almost unlimited number” of possible definitions. 33 What *30 constitutes good moral character for admission to the bar may differ from what constitutes good moral character under other circumstances. 34 What constitutes sufficient evidence of good character for admission to the bar of one state may be insufficient for a different state. 35 Good character remains ambiguously defined, at best.

III. Character as a Basis for Denial of Admission to the Bar

Given the ambiguity and lack of uniform definition, much uncertainty remains as to the precise location of any bright line between good and bad character for purposes of bar admission. Notwithstanding this uncertainty, certain prior conduct by an applicant will near-uniformly result in a denial of admission. 36 Bar applications universally request detailed information about an applicant's criminal history. 37 An applicant's criminal history, perhaps more than any other prior conduct by an applicant, is likely to result in a denial of admission. 38

In nearly all states, there are examples of an applicant, convicted of a violent felony, who has been denied admission to the bar on the basis of that conviction. 39 For example, the California state bar examiners have determined that applicants who have been “convicted of violent felonies, felonies involving moral turpitude and crimes involving a breach of *31 fiduciary duty are presumed not to be of good moral character.” 40 Similarly, an applicant to the bar of Arizona who pled guilty to attempted murder was denied admission. 41 An applicant who was convicted of murder and attempted robbery was similarly denied admission to the bar of the District of Columbia. 42 Applicants who have been convicted of violent felonies may reasonably assume that their admittance may be denied as a result of those convictions.

Applicants are also routinely denied admission in instances where the applicants' prior criminal history reveals evidence of dishonesty. Applicants have been denied admission for criminal dishonesty ranging from bribery, 43 to mail fraud, 44 to tax fraud, 45 and to perjury and false testimony. 46 For example, an applicant was denied admission to the bar of the District of Columbia because, amongst other criminal acts, he had testified falsely under oath and had been held in contempt for improper practice of law. 47 Similarly, the Georgia bar denied admission to an applicant who not only gave evasive answers to the bar examiners but who had previously lied under oath. 48 An applicant who has committed a serious crime of dishonesty may reasonably assume that this prior criminal behavior will serve as an impediment to bar admission.

Bar examiners also consider seriously a prior history of criminal sexual misconduct, even when the misconduct dates back to a time when the applicant was a minor. 49 For example, an applicant was denied admission to the Illinois bar on the basis that he lacked good moral character in part because, at the age of sixteen, the applicant had pled guilty to committing rape. 50 In general, conviction for sexual offenses is likely to prevent bar admission. 51

*32 The effect non-criminal prior behavior will have on admission is less uniform. An applicant who discloses prior dishonesty that was not the subject of a criminal conviction may or may not be admitted to a state bar. 52 Most state bars have adopted admission rules patterned after the recommendations of the ABA-National Conference of Bar Examiners Committee (the “ABA-NCBE Committee”). 53 Pursuant to those recommendations, prior non- criminal behavior will not necessarily disqualify an applicant. 54 Instead, the disclosure of prior non-criminal behavior triggers an inquiry by the state bar examiners who may elect to admit the applicant after an inquiry into the applicant's prior behavior. 55

The state bar examiners may consider, among other non-criminal conduct, evidence of prior academic misconduct. 56 The ABA-NCBE Committee's standard character and fitness application includes the following question, which directly solicits information relating to academic misconduct: Have you ever been dropped, suspended, warned, placed on scholastic or disciplinary probation, expelled, requested to resign, or allowed to resign in lieu of discipline from any college or university (including law school), or otherwise subjected to discipline by any such institution or requested or advised by any such institution to discontinue your studies there? 57

Bar examiners are not obligated to accept the academic institution's prior determination that the applicant committed academic misconduct. 58 *33 Instead, in some instances, bar examiners will treat prior academic misconduct as establishing a rebuttable presumption that the applicant lacks good moral character. 59 In other instances, bar examiners may simply defer to the prior determination by the academic institution and adopt the prior finding of academic misconduct. 60 In addition to evidence of academic misconduct disclosed by the applicant directly, the applicant's law school may independently provide evidence to the state bar associations. 61

IV. The Inherent Dangers in Considering Evidence of Academic Misconduct

The fact that a bar association may consider a finding of academic misconduct, or even credit such a finding with no additional inquiry, raises grave concerns. A finding of prior academic misconduct is radically different from a prior criminal conviction. Unquestionably, accusations of student misconduct-- especially when there have been accusations of sexual assault--are serious. Yet, despite this seriousness, students are typically afforded limited due process protection in the academic setting.

The academic institution is generally responsible for identifying and addressing instances of academic misconduct, including plagiarism. 62 Typically, accusations of academic misconduct arise from violations of academic honor codes. 63 These codes vary from institution to institution. Academic proceedings for honor code violations generally provide students with very limited due process protection. At best, many honor codes require only that the student be given notice and an opportunity to be *34 heard. 64 Other due process protection may be largely absent from the academic setting.

Although most public university honor codes now incorporate some limited due process protections, that was not always true. 65 The idea that students accused of academic misconduct have due process rights is relatively recent. The first major case to recognize that students were entitled to any due process protection in this type of academic setting was Dixon v. Alabama State Board of Education. 66 In Dixon, the Fifth Circuit held that public university students have a private interest in their education that requires some due process protection prior to expulsion. 67 The United States Supreme Court ultimately affirmed this reasoning, holding that students at public universities have some constitutionally protected due process rights. 68 Although some due process rights have been afforded to public university students, those rights are much more limited than would be required in other settings. 69

As compared to the criminal law setting, many due process protections are absent in the academic setting. For example, in the academic setting at a public university, students may lack the right to be represented by counsel. 70 Students may not have the right to cross-examine witnesses. 71 Allegations of misconduct may be decided not by impartial judges but by panels of students or administrators. 72 For students subject to academic discipline, there is scant opportunity for judicial review. 73 These and other *35 due process protections would be present in a judicial setting. 74 Even a cursory review of the missing due process protections shows how severely due process protections are limited in the academic setting. In essence, so long as the student is afforded notice and some basic adversarial process, due process requirements are met in a public university academic misconduct hearing. 75

Students attending private universities and colleges have even fewer due process protections than students at public institutions. 76 Courts have declined to extend the reasoning of Dixon to due process challenges initiated by students at private universities. 77 So long as the private university employs hearing procedures that are “fundamentally fair,” the university need not adhere to any traditional due process requirements. 78 Therefore, a student attending a private university may be found to have committed academic misconduct, even though this finding is the product of a campus hearing nearly devoid of any due process protection.

The stakes are certainly high for students. Absent full due process protections, an accusation of plagiarism may develop into a finding of misconduct that plagues the student many years later when the student has completed law school and seeks admission to the bar. Because honor codes and academic misconduct hearing procedures vary from campus to campus, the bar examiner evaluating the finding of academic misconduct likely knows little about the process culminating in the finding. The process may have included the right to counsel and a fair hearing, or it may have entailed little more than unfounded accusations credited in a biased forum. Simply put, there is no meaningful way to know whether the finding of a campus hearing is the product of a process that is worthy of crediting. This *36 poses a genuine problem to state bars seeking to evaluate bar applicant character.

This problem is magnified when a student has been subjected to a campus hearing to address sexual assault or other serious criminal accusations. Now, it is not a mere act of dishonesty being considered, but an act that may be akin to a crime.

The stakes are high for both the student and the university. It is inarguable that sexual assault on campus is a serious problem facing colleges and universities. 79 The problem is sufficiently serious that Congress and the United States Department of Education have sought to reduce the levels of sexual assault through legislation, most notably Title IX of the Education Amendments of 1972. 80

Unlike in cases of plagiarism, where the arguable “victim” is the university itself, in many instances, accusations of campus sexual assault involve student perpetrators (or accused perpetrators), as well as student victims. 81 The

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 68 5 GIVING CREDIT WHERE CREDIT ISN'T DUE (PROCESS):..., 38 J. Legal Prof. 25 academic institution must therefore carefully balance the interests of the accuser and accused, because both are students. 82 Although the law is clear that students “do not ‘shed their constitutional rights' at the schoolhouse door,” academic institutions nonetheless struggle to properly balance protections for the victim and the accused in the case of sexual assault. 83

The problems inherent in the limited due process rights afforded students accused of academic dishonesty are no less present for students accused of sexual assault. In fact, the stakes are far higher, but the due process protections may be even more limited. 84 An accusation of rape, for example, may have criminal implications far more serious than an accusation of plagiarism. Not only may an accusation of rape expose the *37 accused to criminal liability, the mere stigma of such an accusation may be long-lasting and far-reaching. Notwithstanding this fact, students accused of sexual assault who are subjected to a campus hearing may not be afforded the right to be represented by counsel 85 or to cross-examine witnesses. 86

Recently, the balance has tipped sharply against due process protections for the accused. On April 4, 2011, the Department of Education issued a letter setting forth procedures applicable to universities pursuant to Title IX. 87 Most notably, the letter requires that universities utilize the “preponderance of the evidence standard” for hearings involving sexual assault. 88 This low standard contrasts sharply with the standard applied in the judicial setting, where accusations of criminal sexual assault would require proof beyond a reasonable doubt. 89 Unlike the defendant in a criminal case, the student accused of sexual assault is not considered innocent until proven guilty. 90 In many ways, the academic setting is far more hostile to the accused than a criminal setting. 91 As a result, it appears far more likely that a student will be found to have committed sexual assault if the accusations are made in a campus hearing rather than in a judicial forum.

As if the lowered standard was not enough reason for concern, on May 9, 2013, the Department of Education announced a new “blueprint” pursuant to which universities are directed to abandon any use of an objective standard for sexual harassment. 92 Rather than utilize the legal definitions of sexual harassment used in the Title VII context, the Department of Education suggests that sexual harassment should be broadly defined as any unwelcome conduct of a sexual nature, including speech, even where an objective person would not be offended by the *38 conduct. 93 In other words, if any listener on campus is offended, sexual speech constitutes sexual harassment subject to an on-campus hearing and potential punishment. As a result, virtually any speech may result in academic discipline and the attendant consequences for bar admission.

V. Due Process Available for Applicants to the Bar

In contrast to the scarcity of due process protections offered in the academic setting, significant protections and due process are afforded to the bar applicant. 94 Bar applicants may demonstrate their good character using a burden- shifting standard that favors the applicant. In hearings before bar examiners, an applicant must initially prove that the applicant has good moral character. 95 The burden then shifts to the bar examiners to rebut the applicant's evidence with evidence of prior bad character. 96 If the bar examiners are able to demonstrate sufficient prior bad character, the burden shifts back to the applicant, who can rebut any evidence of bad character by showing, among other things, that the bar examiners are in error or that the applicant has been sufficiently rehabilitated. 97 Under the preponderance standard, all reasonable doubts are resolved in favor of the applicant. 98 The applicant is guaranteed due process in all regards and can be represented by counsel. 99

If the applicant is denied admission, that applicant has a due process right of appeal, first through the highest levels of the state court system and *39 ultimately to the United States Supreme Court. 100 The applicant's initial appeal entitles the applicant to a de novo review--the state court need not accept the findings of the bar examiners. 101 If denied relief by the state court, the applicant may pursue whatever state appellate process is available before petitioning the United State Supreme Court for review. At each step of the process, the applicant is afforded the same due process protection provided to any litigant in a civil case. Applicants have, on numerous occasions, successfully sought appeal and had the denial of admission overturned. 102 The due process protections in this process are evident.

As these protections show, although not an absolute right, the ability to pursue the practice of law without unnecessary obstruction is an entitlement that is taken seriously by the courts. It is an entitlement important enough to be given significant due process. It is not something that should be denied baselessly. Throughout the process of applying for admission to the bar, the applicants' rights must be protected. This includes, where appropriate, review by the highest court in the land. The applicant to the bar is entitled to due process; the student accused of on-campus assault may not be.

*40 VI. The Quandary Facing Bar Examiners

This highlights starkly the quandary facing bar examiners. Given the lack of due process protection afforded students in an academic setting, state bar examiners are faced with a quandary when evaluating findings of misconduct. On one hand, examiners may be loath to re-examine evidence regarding accusations of cheating years after the student has graduated from law school. The examiners may simply find the accusations too stale to merit re-examination. The examiners may prefer not to second-guess academic decision-making. On the other hand, by crediting the outcome of a campus hearing, the examiners may be giving undue weight to an unreliable decision that was fraught with unfairness when rendered.

The quandary is well illustrated in In re K.S.L., a case decided by the Georgia Supreme Court. 103 In that case, the applicant to the bar had been accused of plagiarism while he was a law student. 104 The law school held a formal hearing, and the hearing officer determined that although the applicant's law school paper was poorly written, it did not constitute plagiarism. 105 The applicant was absolved of the accusation of plagiarism.

The applicant's absolution was short-lived. After graduation, the applicant filed an application to the Georgia bar. 106 Rather than merely accepting the hearing officer's decision, the Georgia bar examiners themselves evaluated the applicant's law school paper, determined it contained material that was not properly attributed, and concluded that the paper was plagiarized. 107 The Georgia bar examiners denied admission to the bar. 108

That finding, made years after the relevant facts occurred, was upheld on appeal. After the Georgia bar examiners denied his application, the student appealed to the Georgia Supreme Court. 109 On appeal, the court noted that although neither it nor the Georgia bar examiners were bound by the hearing officer's findings, there was evidence of plagiarism justifying the denial of the application. 110 The applicant was not admitted to the Georgia bar. 111

The implications of this case are troubling. On one hand, the Georgia bar examiners certainly had an interest in determining whether the *41 applicant possessed good moral character. On the other hand, by reviewing the evidence and finding contrary to the university, the Georgia bar examiners called into question the accuracy of the hearing officer's findings and the integrity of the university's hearing system. Moreover, the Georgia bar examiners placed the applicant in the difficult position of defending stale accusations.

Perhaps even more striking is the case of Doe v. Conn. Bar Examining Committee, a case decided by the Connecticut Supreme Court. 112 In that case, the applicant to the bar had been accused of plagiarism while he was a third-year law student at Quinnipiac College School of Law. 113 Specifically, he was accused of submitting a paper that contained not only his own work-product, but also the work of another student. 114 Rather than face a hearing, the applicant admitted that he had violated Quinnipiac's honor code. 115 After graduation, the applicant applied for admission to the Connecticut bar, disclosing the act of plagiarism in his application. 116

Rather than merely examining the applicant's paper, as the Georgia bar examiners had done in In re K.S.L., the Connecticut bar examiners went a step further. The Connecticut bar examiners called the applicant to testify about the drafting of the paper. 117 The Connecticut bar examiners then contrasted this testimony to the applicant's prior testimony about the plagiarism and found inconsistencies. 118 The Connecticut bar found that the new testimony illustrated that the applicant had indeed submitted another student's work as part of his paper. 119 Ultimately, for these and other reasons, the Connecticut bar denied the applicant's admission. 120

The potential hazards to bar applicants illustrated by this case are numerous. On one hand, given the conflict of testimony, it seems problematic that new testimony, given months after the operative events, might be credited rather than more contemporaneous testimony. Given a lapse of several months, it should be no surprise that there was inconsistency about the drafting of a student paper. By the time the applicant was applying for bar admissions, he had likely long-since stopped reflecting on the exact circumstances surrounding that paper.

Even more problematic, the contemporaneous testimony was taken in an academic setting, with fewer due process protections. The motivation *42 for two sets of testimony was also quite different. Sanctions for plagiarism may vary widely in severity from a mere note in the student's file to expulsion. 121 A student facing only a mild sanction may admit to certain events and simply accept the meager punishment, even if that student has not actually committed plagiarism.

Aside from problems relating to the applicant's own testimony, reconsidering academic findings raises problems relating to witness testimony. Witnesses may be other students who have long since graduated, moved, and lost contact with the applicant and university. An applicant may, years after the fact, be unable to present an adequate defense due to witness unavailability.

Even assuming witnesses are available many years after the fact, it seems unnecessary to rake an applicant over the coals a second time after that applicant has already admitted to wrongdoing and accepted academic punishment. 122 It seems futile to force an applicant to endure a second hearing when that applicant has already admitted wrongdoing.

A prime example of this futility is relayed in In re Petition of Zbiegien. 123 The applicant in Zbiegien had admitted to plagiarizing information in a draft of a paper he submitted while he was a student at William Mitchell College of Law. 124 When confronted by the law school, he “did not deny the plagiarism.” 125 Instead, he conceded that he had been under stress due to his wife's recent car accident and agreed to accept the law school's sanction. 126 In his Minnesota bar application, the applicant disclosed the incident. 127

Unfortunately for the applicant, he was not able to put this incident behind him. The Minnesota bar examiners scheduled a hearing and heard testimony from, among other witnesses, the applicant, his law school professor,

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 71 8 GIVING CREDIT WHERE CREDIT ISN'T DUE (PROCESS):..., 38 J. Legal Prof. 25 and the law school dean. 128 The applicant also called three character witnesses and detailed his lengthy history dating back to his military service and attendance of community college. 129

This testimony was not sufficient. The Minnesota bar examiners “dissected the [[draft] paper line by line and phrase by phrase” during the hearing and obligated the applicant to admit each portion of text that had *43 been plagiarized. 130 In the end, only after an appeal was the applicant deemed suitable for bar admission. 131

As a profession, we ought to seriously question what benefit this hearing provided. Yet, a bar examiner who fails to inquire deeply into past misconduct may accidentally admit an applicant who is not fit to join the bar. When allegations of academic misconduct have been made, bar examiners are indeed faced with a quandary.

The quandary facing bar examiners becomes even more apparent in cases where an applicant has been found to have committed sexual assault in the academic setting. There is a serious stigma attached to even the mere accusation of sexual assault. Moreover, these allegations often involve disputes between students. In critical ways, hearings relating to sexual assault differ from those relating to plagiarism.

In the case of plagiarism, witness testimony is less critical. Take, for example, an allegation that a law school paper includes material copied from the Internet. The allegedly plagiarized paper can be examined by any neutral third- party and compared to the original Internet source to see whether it has been inappropriately copied. Although minds can differ about the intent of the accused plagiarizer, the evidence of unattributed text is more obvious. Even years after the incident, the plagiarized paper can be re-examined without having suffered the ill effects time has on human memory.

In contrast, in the case of sexual assault, the testimony often involves only the accuser's word against the accused. Serious stigma attaches to both parties, as even the mere accusation of sexual assault may damage the reputation and academic career of the accuser. Witnesses, if there are any, may be reluctant to testify. They may feel torn between the accuser and the accused. They may worry that they too will suffer stigma or be accused of wrongdoing for failure to intervene or report the sexual assault. Over time, witness testimony may become unreliable.

Yet, in cases of sexual assault, testimony may be the only evidence. This is especially true in cases involving disputes of consent. Take, for example, an accusation of rape. The accuser may testify that the sexual contact was nonconsensual. The accused may counter by testifying that there was, in fact, consent. Only witness testimony can resolve this dispute. Years after the incident, witnesses may lose their recollection or be unwilling to testify. Re-hearing allegations at the time of bar application may not be simple or even feasible.

Even more disturbing, an applicant may be denied bar admission based on relatively innocuous, albeit inappropriate, sexual conduct that was the *44 subject of an academic disciplinary hearing. An applicant was denied admission to the North Carolina bar where he admitted to “peeping tom” behavior as an undergraduate student, including drilling holes in a ceiling to spy on women. 132 The stakes are high for students accused of any sexual misconduct, but the due process protections are minimal.

VII. Suggestions for Bar Examiners

As this article demonstrates, there are various problems associated with the character and fitness requirements for bar admission in cases where the bar applicant has had evidence of prior academic misconduct. There is no easy answer. Clearly, one partial solution to the problem would be more standardization of academic honor codes and misconduct hearing procedures. This solution would be particularly effective if universities moved towards adoption of full due process protections for academic misconduct hearings. At the very least, a uniform rule

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 72 9 GIVING CREDIT WHERE CREDIT ISN'T DUE (PROCESS):..., 38 J. Legal Prof. 25 that counsel be provided to students accused of sexual assault would be a step towards ensuring adequate due process protections are met during campus hearings. This solution, however, seems unlikely as the trend at many universities has been to lower the standard of proof and reduce due process protections rather than heighten these protections.

Even if the lower standard of evidence is applied, academic institutions should adopt measures to ensure the outcome of campus hearings can be appropriately assessed by bar examiners. All primary sources, such as allegedly plagiarized student papers and the underlying plagiarized material, should be retained by the university for a period sufficient to ensure that bar examiners can review this primary source material independently. Additionally, campus hearings should be recorded or transcribed to prevent the need to recall witnesses and represent evidence many years after the hearing.

Another partial solution would be to compile a database of academic honor codes and misconduct hearing due process procedures that could be referenced by state bar examiners. In that way, at least bar examiners would have a more comprehensive basis from which to evaluate prior allegations and findings of academic misconduct.

Ultimately, it may behoove state bar committees to carefully weigh these concerns and their interest in character and fitness and to develop uniform procedures to apply in the case of academic misconduct. There is a difficult balance that must be found between procedures that render it easy for the character committee to consider the full scope of applicant character and procedures that prevent undue weight from being given to *45 findings that resulted from faulty procedures. If the due process protection provided to bar applicants when they apply is any indication, the right to practice law as a profession is an important one. Applicants should not be unfairly excluded as a result of evidence of “bad character” that, upon inspection, was the process of an academic procedure devoid of traditional due process protections.

Only by recognizing some of the concerns outlined in this article, and carefully considering how they may impact a bar character and fitness analysis, can the legal community truly ensure all interests are fairly balanced. Jokes about lawyers aside, we certainly want to exclude sharks from the ranks of practicing attorneys. We do not, however, want to muddy the waters by over emphasizing the results of campus hearings.

Footnotes 1 Why won't sharks bite lawyers? Professional courtesy.

2 Matthew A. Ritter, The Ethics of Moral Character Determination: An Indeterminate Ethical Reflection upon Bar Admissions, 39 Cal. W. L. Rev. 1, 2 (2002); see also Marshall Scott May, Partin v. Bar of Arkansas: The Good Moral Character Requirement for Arkansas Bar Applicants, 49 Ark. L. Rev. 829, 833 (1997); Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 493-96 (1985).

3 Richard R. Arnold, Jr., Comment, Presumptive Disqualification and Prior Unlawful Conduct: The Danger of Unpredictable Character Standards for Bar Applicants, 1997 Utah L. Rev. 63, 65 (1997).

4 Stephanie Denzel, Second-Class Licensure: The Use of Conditional Admission Programs for Bar Applicants with Mental Health and Substance Abuse Histories, 43 Conn. L. Rev. 889, 894 (2011); see also Rhode, supra note 2, at 493-96.

5 Sonya Harrell Hoener, Due Process Implications of the Rehabilitation Requirement in Character and Fitness Determinations in Bar Admissions, 29 Whittier L. Rev. 827, 828-29 (2008).

6 See Judith Resnik, The Addison C. Harris Lecture: Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 Ind. L.J. 823, 863-64 (2012) (noting that the ABA was

founded in 1878 to highlight the “overlapping interests of the bench and the bar”); see also Allison Marston, Guiding the Profession: The 1887 Code of Ethics of the Alabama State Bar Association, 49 Ala. L. Rev. 470, 470-71 (1998) (noting that the founders of the ABA were reformers seeking to “uphold the honor of the profession”).

7 Caroline P. Jacobson, Academic Misconduct and Bar Admissions: A Proposal for a Revised Standard, 20 Geo. J. Legal Ethics 739, 741 (2007).

8 Id.

9 A.M. Hendrickson, Rules for Admission to the Bar in the Several States and their Territories of the United States xi (West Publishing Co., 1917); see also Edson R. Sunderland, History of the American Bar Association and its Work 143 (R. H. Smith, 1953).

10 Vijay Sekhon, The Over-Education of American Lawyers: An Economic and Ethical Analysis of the Requirements for Practicing Law in the United States, 14 Geo. Mason L. Rev. 769, 790 (2007).

11 Id.

12 Carol M. Langford, Barbarians at the Bar: Regulation of the Legal Professional Through the Admissions Process, 36 Hofstra L. Rev. 1193, 1205 (2008); see also C.A. Lightner, A More Complete Inquiry Into the Moral Character of Applicants for Admission to the Bar, 38 Rep. A.B.A. 775, 781-82 (1913).

13 For example, the state of Montana extends a “diploma privilege” to graduates of Montana law schools. Pursuant to this privilege, the graduates need not pass a bar examination to be admitted to the bar. See Huffman v. Montana Supreme Court, 372 F. Supp. 1175, 1176 (D. Mont. 1974). Candidates must nonetheless produce satisfactory testimonials of good moral character. Id.

14 Langford, supra note 12, at 1194; see, e.g., Roe v. State Bar, 74 F. App'x 490, 492 (6th Cir. 2003) (citing the good moral character requirement for bar admission in Michigan); Dugas v. Harahan, 978 F.2d 193, 198 (5th Cir. 1992) (citing the good moral character requirement for bar admission in Illinois); In re Leff, 618 P.2d 232, 232 (Ariz. 1980) (citing the good moral character requirement for bar admission in Arizona); Doe v. Conn. Bar Examining Comm., 818 A.2d 14, 24 (Conn. 2003) (citing the good moral character requirement for bar admission in Connecticut).

15 Aaron M. Clemens, Facing the Klieg Lights: Understanding the “Good Moral Character” Examination for Bar Applicants, 40 Akron L. Rev. 255, 255-56 (2007); see also Ritter, supra note 2, at 3; Michael K. McChrystal, A Structural Analysis of the Good Moral Character Requirement for Bar Admission, 60 Notre Dame L. Rev. 67 (1984).

16 Langford, supra note 12, at 1193; see also Ritter supra note 2, at 14-15.

17 Barry H. Grodsky, Department: Focus On Professionalism: “Character And Fitness,” 56 LA Bar Jnl. 125 (2008).

18 Standard-01 Character and Fitness Application (2005), available at http://www.ncbex.org/character-and-fitness/ servicesl [hereinafter Standard Application]; see also Deborah Landan Spranger, Are State Bar Examiners Crazy?: The Legality of Mental Health Questions on Bar Applications Under the Americans with Disabilities Act, 65 U. Cin. L. Rev. 255 (1996); Margaret Fuller Corneille, Bar Admissions: New Opportunities to Enhance Professionalism, 52 S.C. L. Rev. 609, 614 (2001).

19 Spranger, supra note 18; see also Corneille, supra note 18. Law schools may also be asked to submit information, which again varies by state. Robert L. Jones, Jr., Gerard F. Glynn, & John J. Francis, When Things Go Wrong in the Clinic: How to Prevent and Respond to Serious Student Misconduct, 41 U. Balt. L. Rev. 441, 494-95 (2012).

20 Hoener, supra note 5, at 828-29; see also Audrey Wolfson Latourette, Sex Discrimination In The Legal Profession: Historical And Contemporary Perspectives, 39 Val. U. L. Rev. 859 (2005); Jon Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 UCLA L. Rev. 93, 206-07 (2001); see, e.g., Bradwell v. State, 83 U.S. 130, 141 (1872) (utilizing character standards to exclude women).

21 In re Anastaplo, 366 U.S. 82, 83-84 (1961) (upholding the right of the Illinois bar to deny admission to an applicant who refused to answer questions relating to his membership in the Communist Party); see also In re Summers, 325 U.S. 561 (1945) (upholding the Illinois bar's right to exclude an applicant on the basis that he had refused to serve in the military and instead had been a conscientious objector to WWII). Today, some argue that these same requirements are used to exclude disabled applicants, particularly those with mental health disabilities. See, e.g., Clark v. Virginia Bd. of Bar Exam'rs, 880 F. Supp. 430, 446 (E.D. Va. 1995) (holding a bar examination questionnaire seeking information relating to mental health to be a violation of the Americans with Disabilities Act).

22 Challenges on the basis of vagueness have been unsuccessful. See, e.g., In re Griffiths, 413 U.S. 717, 722-23 (1973); Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 159-60 (1971); Konigsberg v. State Bar of Cal., 366 U.S. 36, 40-41 (1961).

23 Schware v. Bd. of Bar Exam'rs of N.M., 353 U.S. 232, 249 (1957) (Frankfurter, J., concurring).

24 Schware, 353 U.S. at 238-39.

25 In re Florida Bd. of Bar Exam'rs, 358 So. 2d 7, 9-10 (Fla. 1978) (noting the Schware opinion in holding that sexual orientation would not bar admission).

26 Marcus Ratcliff, The Good Character Requirement: A Proposal for a Uniform National Standard, 36 Tulsa L.J. 487, 495 (2000) (noting that certain states have promulgated no definition of good character); The Bar Examiners' Handbook 123 (Stuart Duhl ed., 2d ed. 1980) (noting that “no definition of what constitutes grounds for denial of admission on the basis of faulty character exists”).

27 Corneille, supra note 18, at 614.

28 A.B.A. Section of Legal Educ. & Admissions to the Bar & Nat'l Conference of Bar Examiners, Comprehensive Guide to Bar Admission Requirements 2000 viii (Margaret Fuller Corneille & Erica Moeser, eds. 2000) (the “ABA Admission Guide”).

29 Id. at viii.

30 Sekhon, supra note 10, at 790.

31 Anthony J. Graniere & Hilary McHugh, Are You In or Are You Out? The Effect of a Prior Criminal Conviction on Bar Admission & A Proposed National Uniform Standard, 26 Hofstra Lab. & Emp. L.J. 223, 231-36 (2008).

32 Sekhon, supra note 10, at 795; see also Arpa B. Stepanian, Law Student Clerkships; Walking a Thin Line Requirement of “Good Moral Character” for Admission to the Bar, 3 J. Legal Advoc. & Prac. 67, 71-72 (2001); May, supra note 2, at 834 (noting the lack of a “black letter” definition of good moral character).

33 Konigsberg v. State Bar of Cal., 353 U.S. 252, 262-63 (1957) ( “The term ‘good moral character’ has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer.”).

34 Larry Craddock, “Good Moral Character” as a Licensing Standard, 28 J. Nat'l Ass'n L. Jud. 449, 469 (2008) (comparing the good moral character requirement for admission to the bar with similar requirements for other professional licenses); see also McChrystal, supra note 15, at 70-71 (noting that the definition of good moral character for admission to the bar diverges from the character requirements imposed by the ethical rules applicable to practicing lawyers).

35 See, e.g., Kwasnik v. State Bar, 791 P.2d 319, 328 (Cal. 1990) (admitting to practice law in California an applicant who had previously been denied admission in Florida, in part due to apparent rehabilitation in the time between the two applications); In re W.D.P., 91 P.3d 1078, 1092 (Haw. 2004) (denying admission to the Hawaii bar an applicant who had been admitted and readmitted to the Missouri bar).

36 Theresa Keeley, Good Moral Character: Already an Unconstitutionally Vague Concept and Now Putting Bar Applicants in a Post-9/11 World on an Elevated Threat Level, 6 U. Pa. J. Const. L. 844, 847 (2004) (noting that, in the past, merely holding an unpopular political position could be grounds for denial).

37 Donald H. Stone, The Bar Admission Process, Gatekeeper or Big Brother: An Empirical Study, 15 N. Ill. U. L. Rev. 331, 342-43 (1995).

38 Clemens, supra note 15, at 278-80; see also Jayne W. Barnard, Renewable Bar Admission: A Template For Making “Professionalism” Real, 25 J. Legal Prof. 1, 2 (2001); see, e.g., In re Hamm, 123 P.3d 652, 661 (Ariz. 2005) (denying admission to an applicant with a prior first degree murder conviction, and noting that showing good moral character in light of the conviction was “a near impossibility”).

39 In re G.L.S., 745 F.2d 856, 857 (4th Cir. 1984) (affirming the Maryland bar's refusal to admit an applicant who pled guilty to bank robbery); see also In re Hamm, 123 P.3d at 654-55 (affirming the Arizona bar's refusal to admit an applicant who pled guilty to first degree murder); In re Dortch, 860 A.2d 346, 348-49 (D.C. 2004) (affirming the District of Columbia bar's refusal to admit an applicant who was convicted of second-degree murder, attempted armed robbery, and conspiracy).

40 Graniere, supra note 31, at 232 (citing the State Bar of California, Statement on Moral Character Requirement for Admission to Practice Law in California).

41 In re King, 136 P.3d 878, 886 (Ariz. 2006) (denying admission to the applicant although the applicant had been previously admitted to the bar of Texas).

42 In re Dortch, 860 A.2d at 363 (noting that because the applicant was sentenced for the offenses of murder and attempted armed robbery, the bar was unwilling to consider his admission absent a pardon or commuted sentence).

43 Fla. Bd. of Bar Exam'rs Re Castro, 87 So. 3d 699, 702 (Fla. 2012); see also In re Fleischman, 553 N.E.2d 352, 352-53 (Ill. 1990).

44 In re Application of B., 434 A.2d 541, 544-46 (Md. 1981).

45 In re Wigoda, 395 N.E.2d 571, 572 (Ill. 1979).

46 In re Application of Taylor, 647 P.2d 462, 464-65 (Or. 1982).

47 In re Demos, 579 A.2d 668 (D.C. 1990).

48 In re Adams, 540 S.E.2d 609, 610-11 (Ga. 2001).

49 In re Hinson-Lyles, 864 So.2d 108, 112 (La. 2003); see also In re Childress, 561 N.E.2d 614 (Ill. 1990).

50 In re Childress, 561 N.E.2d at 90-91.

51 See, e.g., In re T.J.S., 692 A.2d 498, 500 (N.H. 1997) (denying admission to an applicant who had been convicted of sexual assault).

52 In re White, 656 S.E.2d 527 (Ga. 2008) (affirming the decision of the Georgia board examiners denying bar admission to an applicant who had submitted a plagiarized paper as a second-year law student); see also In re Zbiegien, 433 N.W.2d 871, 877 (Minn. 1988) (holding that a single instance of academic plagiarism is insufficient to bar admission); In re Widdison, 539 N.W.2d 671, 672 (S.D. 1995) (permitting an applicant to re-apply for admission after he had been found to have committed plagiarism).

53 Hoener, supra note 5, at 829.

54 Id.

55 Id.

56 ABA & Natl. Conference of Bar Exam'rs., Code of Recommended Standards for Bar Examiners Preface (adopted Aug. 1987), available at http:// www.abanet.org/legaled/publications/compguide2005/codeofstandards.pdf; see also Keith Swisher, The Troubling Rise Of The Legal Profession's Good Moral Character, 82 St. John's L. Rev. 1037, 1043 (2008); Friedman v. Conn. Bar Examining Comm., 824 A.2d 866, 873 (Conn. App. Ct. 2003) (considering accusations that an applicant cheated on a law school examination); In re Bedi, 917 A.2d 659, 672 (D.C. 2007) (denying admission to an applicant on the basis that he had cheated on the bar examination); In re K.S.L., 495 S.E.2d 276, 278 (Ga. 1998) (considering an unprosecuted incident in which the applicant had entered unlocked cars to steal money and an instance of alleged plagiarism by the applicant while he was a student).

57 Standard Application, supra note 18.

58 In re Widdison, 539 N.W.2d at 678 n.14 (noting that the academic institution “is a separate and distinct entity from the Board of Bar Examiners. While both may have mutual interests, the decisions of one board has [sic] no binding effect on the other.”); see also In re Zbiegien, 433 N.W.2d at 873 (declining to accept the findings of the academic hearing and instead re-hearing the allegations).

59 Arnold, supra note 3, at 63-64; see also Maureen M. Carr, The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admission Standards, 8 Geo. J. Legal Ethics 367, 381 (1995).

60 Steven K. Berenson, What Should Law School Conduct Codes Do?, 38 Akron L. Rev. 803, 838 (2005).

61 Elizabeth Gepford McCulley, School of Sharks? Bar Fitness Requirements of Good Moral Character and the Role of Law Schools, 14 Geo. J. Legal Ethics 839, 850 (2001); see, e.g., In re Application of Converse v. Nebraska State Bar Comm'n, 602 N.W.2d 500, 502 (Neb. 1999) (finding a lack of good moral character where an applicant failed to disclose misconduct during law school which was disclosed to the Nebraska bar examiners by the applicant's law school); see also A.B.A. Comm'n On Professionalism, In The Spirit Of Public Service: A Blueprint For The Rekindling Of Lawyer Professionalism, reprinted in 112 F.R.D. 243, 269 (1986).

62 Jacobson, supra note 7, at 747.

63 Roger Billings, Plagiarism in Academia and Beyond: What Is the Role of the Courts?, 38 U.S.F. L. Rev. 391, 410 (2004); see also Kimberly C. Carlos, Comment, The Future of Law School Honor Codes: Guidelines for Creating and Implementing Effective Honor Codes, 65 UMKC L. Rev. 937, 938 (1997).

64 Robert N. Roberts, Public University Responses to Academic Dishonesty: Disciplinary or Academic, 15 J. L. & Educ. 369, 372 (1986).

65 Berenson, supra note 60, at 835-38.

66 Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961).

67 Id. at 156-57.

68 See Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 86 (1978) (noting the need for “flexible” due process requirements in the academic setting, reasoning that dismissals for academic reasons do not require a formal notice and hearing because the academic setting is a non-adversarial process).

69 See id. at 90-91.

70 Lisa L. Swem, Due Process Rights in Student Disciplinary Matters, 14 J.C. & U.L. 359, 361 (1987); see also Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir. 1988) (holding that the constitutional rights to retain counsel and to cross-examine witnesses do not apply in the academic setting); Due v. Fla. Agric. & Mech. Univ., 233 F. Supp. 396, 403 (N.D. Fla. 1963) (finding that “it is not necessary to due process requirements that a full scale judicial trial be conducted by a university disciplinary committee with qualified attorneys either present or formally waived as in a felonious charge under the criminal law. There need be no stenographic or mechanical recording of the proceedings.”); Danso v. Univ. of Conn., 919 A.2d 1100, 1108 (Conn. Super. Ct. 2007) (holding that there is no due process right to cross-examine witnesses, and that the rules of evidence may not apply to academic hearings).

71 Danso, 919 A.2d at 1108; see also Gorman, 837 F.2d at 16.

72 Joseph Cohn, Campus Is a Poor Court for Students Facing Sexual-Misconduct Charges, The Chronicle of Higher Education (October 1, 2012).

73 Thomas A. Schweitzer, ‘‘Academic Challenge” Cases: Should Judicial Review Extend to Academic Evaluations of Students?, 41 Am. U.L. Rev. 267, 367 (1992).

74 See, e.g., United States v. Carll, 105 U.S. 611 (1881) (noting the right to notice of an indictment); Powell v. Alabama, 287 U.S. 45 (1932) (discussing the right to assistance of counsel in criminal cases); Barker v. Wingo, 407 U.S. 514 (1972) (noting the right to a speedy trial).

75 Lavinia M. Weizel, The Process that is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-On-Student Sexual Assault Complaints, 53 B.C. L. Rev 1613, 1626-27 (2012).

76 Larry A. DiMatteo & Don Wiesner, Academic Honor Codes: A Legal and Ethical Analysis, 19 S. Ill. U. L.J. 49, 85-86 (1994); see also Douglas R. Richmond, Students' Right to Counsel in University Disciplinary Proceedings, 15 J.C. & U.L. 289, 305-08 (1989).

77 Matthew R. Triplett, Note, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L.J. 487, 502 (2012).

78 PSI Upsilon of Phila. v. Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. Ct. 1991) (“‘[T]he relationship between a private college and its students [i]s contractual in nature. Therefore, students who are being disciplined are entitled only to those procedural safeguards which the school specifically provides.’ The only caveat applied to this principle is that the disciplinary procedures established by the institution must be fundamentally fair.”) (quoting Boehm v. Univ. of Pa. Sch. of Veterinary Med., 573 A.2d 579 (Pa. Super. Ct. 1990) (emphasis removed) (internal citation omitted)); see also Millien v. Colby Coll., 874 A.2d 397, 405-06 (Me. 2005) (holding that a student need not be given the right to cross- examine witnesses in an academic hearing).

79 Christopher P. Krebs et al., The Campus Sexual Assault (CSA) Study: Final Report 5-5-2007 (unpublished report submitted to the National Institute of Justice), available at http://www.ncjrs.gov/pdffilesl/nij/grants/221153.pdf.

80 Title IX, Education Amendments of 1972 § 901, 20 U.S.C. § 1681 (2006).

81 Triplett, supra note 77, at 487 (noting that “student-on-student” sexual assault is a major problem for universities); see also Weizel, supra note 75, at 1614-15 (noting the extent to which colleges struggle to balance interests when both the accused and accuser are students).

82 Holly Hogan, The Real Choice in a Perceived “Catch-22”: Providing Fairness to Both the Accused and Complaining Students in College Sexual Assault Disciplinary Proceedings, 38 J.L. & Educ. 277 (2009); see also Lisa Tenerowicz, Note, Student Misconduct at Private Colleges and Universities: A Roadmap for “Fundamental Fairness” in Disciplinary Proceedings, 42 B.C. L. Rev 653, 682 (2001).

83 Goss v. Lopez, 419 U.S. 565, 574 (1975) (quoting Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 506 (1969)).

84 Academic institutions are free to develop and utilize their own standards for hearings involving academic dishonesty and may opt to use a more “pro-student” burden of proof. In the case of campus hearings for sexual assault, the Department of Education has insisted that the preponderance of the evidence standard applies. Therefore, a student accused of plagiarism may be subject to a more lenient burden of proof than a student accused of rape at that same academic institution. See infra note 87.

85 Kimberg v. Univ. of Scranton, 411 F. App'x 473, 481 (3d Cir. 2010).

86 Millien, 874 A.2d at 405.

87 Letter from Russlynn Ali, Assistant Sec'y for Civil Rights, Office for Civil Rights, U.S. Dep't of Educ. (Apr. 4, 2011), available at http:// www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

88 Prior to this guidance, the Department of Education had not specified which standard applied. See Letter from Will Creeley, Dir. of Legal & Pub. Advocacy, Found. for Individual Rights in Educ. (FIRE), to Russlynn Ali, Assistant Sec'y for Civil Rights, Office for Civil Rights, Dep't of Educ. 6 (May 5, 2011) [hereinafter FIRE Letter], available at http:// thefire.org/public/pdfs/48934710c977d689391d03alda867dc7.pdf?direct.

89 Id.

90 Triplett, supra note 77, at 497-98.

91 See generally id.

92 See Letter from Anurima Bhargava, Chief of the U.S. Dep't of Justice, Civil Rights Div., Educ. Opportunities Section, and Gary Jackson, Reg'l Dir., U.S. Dep't of Educ. Office for Civil Rights, Seattle Office, to President Royce Engfrom, Office of the President, Univ. of Mont., and Lucy France, Esq., Univ. Cousel, Univ. of Mont. 1 (May 9, 2013), available at http://www.justice.gov/opa/documents/um-ltr-findings.pdf.

93 Id. at 4-5.

94 Although more due process is provided, the levels still fall short of what would be required in a formal legal proceeding. See infra note 95.

95 Stepanian, supra note 32, at 70; see also Rhode supra note 2, at 547; see, e.g., In re Gossage, 5 P.3d 186, 196 (Cal. 2000); In re Manville, 494 A.2d 1289, 1294 (D.C. 1985); In re Stepsay, 98 P.2d 489, 491 (Cal. 1940); In re Peterson, 439 N.W.2d 165, 166 (Iowa 1989).

96 Mark R. Privratsky, Note, A Critical Review Culminating in Practical Bar Examination Application Techniques in Regards to the “Good Moral Character Requirement,” 74 Neb. L. Rev. 324, 340 (1995); see also Charles Broome, Note, Constitutional Law--Bar Admissions--Challenge to Bar Admissions Committee's Implementation of Good Moral Character Requirement, 48 Tul. L. Rev. 155, 157 (1973); Fla. Bd. of Bar Exam'rs Re R.D.I., 581 So.2d 27, 29 (Fla. 1991); Greene v. Comm. of Bar Exam'rs, 480 P.2d 976, 978 (Cal. 1971).

97 Ratcliff, supra note 26, at 493; see also In re Menna, 905 P.2d 944, 948 (Cal. 1995) (demonstrating remorse but failing to demonstrate rehabilitation); March v. Comm. of Bar Exam'rs, 433 P.2d 191, 192 (Cal. 1967) (holding on appeal that the applicant had satisfied his burden to demonstrate good moral character).

98 See, e.g., Seide v. Comm. of Bar Exam'rs, 782 P.2d 602, 604 (Cal. 1989) (“While the applicant bears the burden of showing that the State Bar's findings are not supported by the evidence or that its recommendation is erroneous, all reasonable doubts are resolved in his favor.”).

99 See Castro v. Bar Examining Comm., No. 032-05-50, 1994 Conn. Super. LEXIS 380, at *3-6 (Conn. Super. Ct. Feb. 18, 1994) (remanding to the bar examiners for a re-hearing where the original hearing lacked procedural due process safeguards); see also In re Lobb, 157 So. 2d 75, 76 (Fla. 1963) (noting the applicant's right to be represented by counsel before the board of bar examiners); In re Application for Admission to the Bar, 828 N.E.2d 484, 491 (Mass. 2005) (noting the applicant's rights to be informed of charges and confront witnesses).

100 Mitchell M. Simon, What's Remorse Got to Do, Got to Do with it? Bar Admission for those with Youthful Offenses, 2010 Mich. St. L. Rev. 1001, 1009 (2010); see also D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) (noting that final state court judgments denying bar admission may be reviewed by the Supreme Court); Clulow v. State of Okla., 700 F.2d 1291, 1296 (10th Cir. 1983); Craig v. State Bar of Cal., 141 F.3d 1353, 1354 (9th Cir. 1998); Thomas v. Kadish, 748 F.2d 276, 277 (5th Cir. 1984).

101 McCulley, supra note 61, at 842-43. The state court is permitted, as often occurs, to heavily weigh the finding of the bar examiners. See also In re Petition of Cunningham, 502 N.W.2d 53, 57 (Minn. 1993) (“Only with greatest reluctance do we come to a conclusion other than that which the Board recommends.”); In re Application of Howard, 855 N.E.2d

865, 867 (Ohio 2006) (adopting the examiner's recommendation to deny admission where, among other things, the applicant failed to display candor relating to plagiarism of a law school paper); In re Application of Valencia, 757 N.E.2d 325, 327 (Ohio 2001) (adopting the findings of the board that the applicant had committed multiple acts of plagiarism and should be denied permission to take the bar examination); Radtke v. Bd. of Bar Exam'rs, 601 N.W.2d 642, 649 (Wis. 1999) (affirming the board's decision to decline the applicant's character and fitness for bar admission).

102 See, e.g., In re Dreier, 258 F.2d 68, 69-70 (3d Cir. 1958) (reversing the district court's denial of admission and remanding for a consideration of whether the applicant's rehabilitation post-conviction sufficiently demonstrated he possessed good moral character); see also Lubetzky v. State Bar, 815 P.2d 341, 351 (Cal. 1991) (admitting to the California bar an applicant who had been denied where the California Supreme Court determined that the bar examiners failed to rebut petitioner's prima facie case of good moral character); In re Courtney, 319 P.2d 991, 994-95 (Ariz. 1957) (admitting to the Arizona bar an applicant who appealed after he had been denied admission by the Arizona bar examiners).

103 In re K.S.L., 495 S.E.2d 276, 277 (Ga. 1998).

104 Id. at 276.

105 Id. at 277.

106 Id.

107 Id.

108 In re K.S.L., 495 S.E.2d at 277.

109 Id.

110 Id. at 278.

111 Id.

112 Doe, 818 A.2d at 14.

113 Id. at 18-19.

114 Id.

115 Id. at 18-19.

116 Id. at 19.

117 Doe, 818 A.2d at 14.

118 Id. at 25.

119 Id. at 27.

120 Id.

121 Kim D. Chanbonpin, Legal Writing, the Remix: Plagiarism and Hip Hop Ethics, 63 Mercer L. Rev. 597, 603 (2012).

122 See In re Zbiegien, 433 N.W.2d at 876-77.

123 Id.

124 Id. at 872.

125 Id.

126 Id.

127 In re Zbiegien, 433 N.W.2d at 872-73.

128 Id. at 873.

129 Id. at 873-74.

130 Id. at 876-77.

131 Id. at 877.

132 In re Elkins, 302 S.E.2d 215, 216-17 (N.C. 1983). 38 JLEGPRO 25

50 U.S.F. L. Rev. 35

University of San Francisco Law Review 2016

Articles

“LET'S TALK ABOUT SEX”: LEGISLATING AND EDUCATING ON THE AFFIRMATIVE CONSENT STANDARD

Wendy Adele Humphrey a1

And we're a people who believe every child deserves an education that allows them to fulfill their God-given potential, free from fear of intimidation or [[sexual] violence. And we owe it to our children to live up to those values.

--President Obama 1

Introduction

IN 1991, Salt-N-Pepa released the classic hip-hop song “Let's Talk about Sex” 2 to address an otherwise private and intimate topic. Now, almost twenty-five years later, in light of the prevalence of sexual violence on college campuses, the song's title takes on a whole new meaning. Indeed, sexual assault on college campuses across the nation has been receiving an unprecedented level of attention, and news *36 headlines about sexual assault and the portrayal of sexual behavior on college campuses are thus becoming all too common:

My Rapist is Still on Campus, May 14, 2015: I was raped by a fellow classmate the first day of my sophomore year. I didn't report it at first because I didn't feel like dealing with the emotional trauma. But then I met two other women who told me the same person who had assaulted me assaulted them, and I decided I had to do something. We all reported our cases, and all three were dismissed. 3

More College Men are Fighting Back Against Sexual Assault Cases, June 7, 2014: Peter Yu, Drew Sterrett and Lewis McLeod were headed toward bright futures at prestigious colleges and universities when each got involved in one-night sexual encounters. All three young men claimed the encounters were consensual-- but the women asserted otherwise. In each case, campus officials found the men responsible for sexual assault and expelled or suspended them. 4

Texas Tech Frat Loses Charter Following ‘No Means Yes, Yes Means Anal’ Display, October 4, 2014: On Sept. 19, the Phi Delta Theta fraternity held a hurricane theme party where a “No Means Yes” banner was put up in addition to a display of a woman's genitals around a sprinkler. The

national office investigated the incident after photos leaked online and announced Monday it was placing the Texas Tech chapter “in escrow” and removing members involved in organizational violations. 5

*37 These news headlines reflect the pervasive problem of sexual assault on college campuses, a problem that has even been coined a crisis of “epidemic proportions.” 6 In fact, partially due to the nature of the college atmosphere, 7 college women are put in greater danger of sexual violence than college-age males, who account for only seventeen percent of rape and sexual assault victimizations. 8 Some research indicates that possibly one in five women is sexually assaulted while in college, 9 and unfortunately, the statistics for young women who are in *38 high school are equally disturbing. 10 In regard to college sexual assault, studies have discovered that the large majority of sexual assault incidents are a result of acquaintance rape, 11 which occurs when the victim and the attacker know each other, as opposed to stranger rape, when they do not know each other. 12 Moreover, repeat predators in campus sexual assaults may account for up to nine out of every ten rapes. 13

After an unwanted sexual encounter in a college setting, the alleged victim has several options: seek criminal charges through the criminal justice system, file a civil lawsuit against the alleged perpetrator, or file a sexual misconduct grievance with the institution of higher education. 14 The majority of sexual assault victims, however, do not report their sexual assaults to law enforcement officials, 15 so *39 they do not initiate formal criminal charges. Some researchers attribute the lack of reporting to confusion about what constitutes sexual assault 16 and to the fear of not being believed. 17 This reality has led some critics to argue that colleges and universities should not be investigating and adjudicating allegations of sexual misconduct at all, 18 or that they should wait to investigate only after local law enforcement completes a criminal investigation. 19 Under current federal law, however, colleges and universities that receive federal funding are required to provide students protection against discriminatory practices, including sexual harassment. 20

As a result, the prevalence of sexual assault on college campuses has triggered sweeping reform. 21 To comply with federal law, and with guidance from the White House Administration, colleges and universities have developed policies and procedures to advance the goal of preventing sexual assault. 22 One such policy that has gained momentum is the concept of affirmative consent. 23 Under the typical “yes means yes” affirmative consent standard, the initiator of sexual activity must get voluntary agreement, either verbally or nonverbally, at each *40 stage of a sexual encounter. 24 This means that during campus investigations and adjudications of sexual misconduct allegations, the conversation shifts from a “no means no” victim-focused standard to a “yes means yes” perpetrator-focused standard. 25 Whether one supports or opposes the affirmative consent standard, sexual assault has been catapulted into the national discourse, and the yes means yes standard is one way that college campuses are trying to fundamentally shift how sexual assault is addressed. Moreover, based on the momentum that the affirmative consent movement is gaining, it is doubtful that the standard will lose support at any time in the near future.

Part I of this Article briefly examines the relevant legislation and White House administrative action to provide context for the evolution of the yes means yes affirmative consent standard. 26 Part II then focuses on the yes means yes standard, recognizing that although the large majority of colleges and universities are not yet required to adopt an affirmative consent policy, many have done so on their own initiative. 27 In addition, Part II looks

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 83 2 “LET'S TALK ABOUT SEX”: LEGISLATING AND EDUCATING..., 50 U.S.F. L. Rev. 35 at both state and federal legislation that has mandated or may mandate schools to adopt an affirmative consent standard. 28

Finally, because affirmative consent is now being advanced on college campuses and because Title IX applies to primary and secondary schools, Part III presents logical, compelling reasons why affirmative consent education before college is necessary to combat the problem of sexual assault. 29 In this regard, Part III argues that, based on research and on the existing educational framework in most states, high schools should be required to include instruction about the affirmative consent standard. 30 While there is no one-size-fits-all solution for addressing the problem of sexual assault on college campuses, requiring evidence-based awareness and prevention education during high school about affirmative consent is one tool to help young people start thinking differently about sexual violence.

*41 I. Sexual Assault Legislation and Administrative Action

An understanding of the affirmative consent standard necessitates a brief explanation of the federal legislation and administrative action that has contributed to the paradigm shift from “no means no” to “yes means yes.” Part I sets forth the relevant law, guidelines, and policies that have helped the yes means yes affirmative consent standard evolve into its present form.

A. Title IX and Sexual Harassment

The roots of Title IX can be traced back to the Higher Education Act of 1965, 31 which promoted higher education by adding funding through federal grants and loan programs. The Higher Education Act of 1965, however, did not initially condition the grant of federal funds on non-sexually-based discrimination. 32 In 1972, Congress amended the Higher Education Act of 1965, and Title IX of the Educational Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance . . . .” 33 Accordingly, the purpose of Title IX is to avoid the use of federal funding to support discriminatory practices and to provide individual citizens protection against those discriminatory practices. 34

In 1980, the National Advisory Council on Women's Educational Programs conducted a review of Title IX 35 and determined that Title IX should be interpreted to prohibit sexual harassment. 36 The Council *42 contacted the U.S. Department of Health, Education, and Welfare's Office of Civil Rights (OCR) and urged it to implement regulations consistent with its sexual harassment interpretation. 37 The following year, the OCR determined that under Title IX, sexual harassment encompasses “verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent of a recipient that denies, limits, provides different, or conditions the provision of aid, benefits, services or treatment protected under Title IX.” 38 Finally, in 1992 the U.S. Supreme Court in Franklin v. Gwinnett County Public School recognized that sexual harassment could fall under Title IX. 39

Title IX is enforceable at the administrative level 40 and through an implied private right of action. 41 At the administrative level, the OCR is charged with conducting investigations over concerns that colleges and universities violated the gender equity law under Title IX in their handling of sexual misconduct cases. 42 Currently, the OCR is *43 conducting over 160 investigations at colleges and universities regarding concerns

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 84 3 “LET'S TALK ABOUT SEX”: LEGISLATING AND EDUCATING..., 50 U.S.F. L. Rev. 35 that the schools violated Title IX in their handling of sexual violence cases. 43 In 2014, the OCR determined that six of the schools it investigated violated Title IX. 44

Based on the implied private right of action, a number of Title IX lawsuits have been filed alleging that higher education institutions did not properly respond to allegations of sexual misconduct. 45 For example, last year a group of college students collectively filed complaints with the Department of Education against Columbia University, alleging that the university mishandled cases involving sexual assault. 46 One of the complainants, Emma Sulkowicz, received national attention for carrying a mattress around campus for months in protest of the alleged mishandling of her sexual assault case. 47 Sulkowicz has become the face of the college sexual assault survivors' movement and *44 she even attended the 2015 State of the Union address as a guest of Senator Kirsten Gillibrand. 48 On the other hand, college men are increasingly filing Title IX lawsuits against universities for the alleged failure to handle allegations of sexual misconduct in ways that comport with due process. 49 Thus, the number of OCR investigations and Title IX lawsuits demonstrates that sexual assault on college campuses continues to be a pervasive issue with which our nation's colleges and universities struggle as they attempt to comply with Title IX.

B. The OCR's Sexual Harassment Guidance And “Dear Colleague” Letter

The OCR published its first Sexual Harassment Guidance in 1997 50 and then revised it in 2001 (“2001 Guidance Document”). 51 The 2001 revisions explained that, to comply with Title IX, schools have the responsibility to adopt a sexual harassment policy, designate a Title IX Coordinator, and provide grievance procedures for sexual harassment victims. 52 Additionally, the 2001 Guidance Document addressed *45 institutions of higher education by engaging response protocol to stop sexual harassment, acting to prevent the recurrence of harassment, and taking steps to restore complainants of sexual harassment. 53 Moreover, because public colleges and universities are considered state actors, they must abide by the Fourteenth Amendment's prohibition against depriving students of property without due process of law. 54 In this regard, the 2001 Guidance Document stressed that the procedures adopted by a school covered by Title IX must not only “ensure the Title IX rights of the complainant,” but must “[accord] due process to both parties involved . . . .” 55 Of course, due process requirements in university disciplinary proceedings are not the same as the requirements within criminal or civil courts. 56

In April of 2011, the OCR issued a letter (the “‘Dear Colleague’ Letter”), asking schools to take proactive steps to end sexual violence on campus. 57 The “Dear Colleague” Letter included guidelines and procedural requirements to help colleges and universities nationwide better understand their obligations under federal civil rights law to prevent and respond to reports of sexual violence on campus. 58 The “Dear Colleague” Letter explained the educational measures colleges and universities should take to help prevent sexual violence. 59

Specifically, the letter explained that proactive measures include designating an employee to coordinate Title IX compliance and publishing a list of sexual misconduct grievance procedures for students. 60 In addition, the letter suggested that schools implement sexual assault *46 orientation programs for new students, faculty, and staff. 61 Likewise, other persons who have a higher likelihood of coming into contact with sexual assault victims and perpetrators--campus law enforcement, coaches, student athletes, and residence hall assistants--should receive sexual assault training. 62 All of the implemented orientation programs and training should educate attendees on the school's definition of sexual assault, encourage reporting, explain the school's sexual assault policies, and explain the potential consequences of sexual assault. 63

Furthermore, the “Dear Colleague” Letter directed schools to follow certain procedures when investigating and adjudicating allegations of sexual violence. 64 In regard to disciplinary proceedings, the letter directed schools to use a “preponderance of the evidence” standard. 65 Although some have criticized the preponderance of the evidence standard for being too low when determining a claim of sexual violence on campus, 66 others maintain that the standard is appropriate for determinations at the campus level. 67 Recent California legislation included the preponderance of the evidence standard and *47 proscribed that the standard be used in campus disciplinary proceedings when adjudicating allegations of sexual misconduct. 68

Most recently, in April 2014, the OCR issued a question and answer document to provide additional guidance to federally funded educational institutions. This document further clarified the legal requirements under Title IX, the OCR's 2001 revised Guidance Document, and the OCR's 2011 “Dear Colleague” Letter. 69

C. Required Reporting under the Clery Act

Also relevant to the issue of sexual assault on college campuses is the Clery Act, formerly known as the Crime Awareness and Campus Security Act. 70 The Clery Act requires colleges and universities to disclose information about crime on and around their campuses. 71 The Clery Act applies to most public and private higher education institutions because it is tied to federal student financial aid programs. 72 In 1992, Congress amended the Clery Act by adding the Campus Sexual Assault Victims' Bill of Rights. 73 The amendments require colleges and universities to afford certain rights to victims of sexual violence. 74 Congress then amended the law again in 1998 to broaden the reporting requirements and renamed the law the Jeanne Clery Disclosure of *48 Campus Security Policy and Campus Crime Statistics Act. 75 The U.S. Department of Education monitors compliance with the Clery Act, 76 and institutions can incur financial penalties of $35,000 per violation 77 as well as suspension from federal student aid programs. 78

The Clery Act requires higher education institutions to complete a number of steps related to disclosure of crime information. Institutions are required to create and publish an Annual Security Report every October 1st. 79 This Annual Security Report must document the previous three years of campus crime statistics. 80 It must also include information on security policies and procedures as well as information about the institution's policies and procedures for criminal incidents. 81 In addition, each institution must keep a public crime log that documents each crime within two business days of the incident. 82 Finally, colleges and universities must disclose crime statistics, including sexual offenses for incidents that occur on campus, on public areas adjacent to or running through campus, and at certain non-campus facilities, e.g., Greek housing. 83 The Act, however, does not require the reporting of off-campus sexual offenses, such as sexual violence that occurs in a student's private apartment. 84 Therefore, reporting required by the Clery Act provides only a glimpse into the prevalence of sexual assault.

D. Campus Sexual Violence Elimination Act

Originally enacted in 1994, the Violence Against Women Act (“VAWA”) provides federal grants to state, local, and tribal law enforcement *49 authorities to investigate and prosecute violent crimes against women. 85 VAWA was reauthorized in 2000 as part of the Victims of Trafficking and Violence Protection Act and then reauthorized again in 2005 when it created the Sexual Assault Services Program. 86 In March 2013, President Obama signed

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 86 5 “LET'S TALK ABOUT SEX”: LEGISLATING AND EDUCATING..., 50 U.S.F. L. Rev. 35 into law the Violence Against Women Reauthorization Act (“VAWA 2013”), 87 which amended the Clery Act and imposed new obligations on colleges and universities, both public and private, under the Campus Sexual Violence Elimination Act (“Campus SaVE Act”). 88

In general, the obligations under the Campus SaVE Act refine and clarify existing legal requirements and government agency enforcement statements. For example, the Campus SaVE Act amended Title IX by making institutions include domestic violence, dating violence, and stalking incidents in annual crime statistics reports 89 and by requiring schools to develop plans to prevent sexual assault violence. 90 Furthermore, the Campus SaVE Act requires schools to educate sexual assault victims on their rights and resources 91 and to specify the procedures that are undergone after a student makes a report of sexual assault. 92

*50 More specifically, the Campus SaVE Act requires that programs primarily focus on sexual misconduct prevention and awareness for all incoming students and new employees. 93 Under the Act, the prevention and awareness programs must include the following information: (1) a statement that the institution prohibits those offenses; (2) the definition of those offenses in the applicable jurisdiction; (3) the definition of consent, with reference to sexual offenses, in the applicable jurisdiction; (4) “safe and positive” options for bystander intervention an individual may take to “prevent harm or intervene” in risky situations; (5) recognition of signs of abusive behavior and how to avoid potential attacks; and (6) ongoing prevention and awareness campaigns for students and faculty. 94

Furthermore, in October 2014, the Department of Education clarified the application of the legal mandates of the Campus SaVE Act with the publication of the Final Regulations implementing the Act, which went into effect on July 1, 2015. 95 Yet, during the recent reauthorization of the Violence Against Women Act, the Department of Education's efforts to require all institutions of higher education to include a federal definition of consent in their codes for student conduct were not successful. 96 Therefore, under current federal law, colleges and universities must create their own definition of consent.

E. The Administration's Recent Efforts

The Obama Administration has taken initiative to combat the issue of sexual assault by calling on campus law enforcement to play a central role in the fight against sexual misconduct. 97 It has also given guidance to schools that receive federal funding on their obligations to prevent and respond to sexual assault. 98 In January 2014, President *51 Obama and Vice President Biden established the White House Task Force on Protecting Students from Sexual Assault. 99 The Task Force has worked to assist colleges and universities in preventing sexual assault and to provide practical tools in preventing sexual violence.

The Administration unveiled a new public awareness and education campaign: “It's On Us.” 100 The It's On Us 101 initiative is a critical part of the Administration's work to improve enforcement, transparency, and accountability. 102 The campaign was launched in partnership with the Center for American Progress' Generation Progress. 103 In addition, the student body leadership from more than 250 colleges and universities, 104 collegiate sports organizations, such as the NCAA, and private companies that have strong ties to the collegiate system, are participating in the It's On Us campaign. 105

In 2014, to bring more attention to sexual assault “on college campuses, at bars, at parties, [and] even in high schools,” the White House produced a short Public Service Announcement (PSA) to address *52 the issue of acquaintance rape. 106 The PSA not only featured President Obama, but it also featured some Hollywood stars, including Seth Myers and Steve Carell. 107 In the PSA, one actor explains that “if she doesn't consent, or if she can't consent, it's rape.” 108 The PSA also stresses the role of bystander intervention 109 and urges students to “help her” and to “be a part of the solution.” 110

Later that spring, the OCR clarified the mandated responses, 111 and the White House Task Force on Sexual Assault provided additional guidance through its “Not Alone” report. 112 The purpose of the Task Force's Not Alone 113 report is to help equip student and administrative *53 bodies to more effectively tackle the issue of sexual violence on campus. 114 The report includes best practices, steps, and recommendations in four main areas: “(1) identifying the scope of the problem through campus climate surveys; (2) preventing campus sexual assault and engaging men; (3) helping schools respond effectively when a student is assaulted; [and] (4) improving, and making more transparent, the federal government's enforcement efforts.” 115

The Not Alone report stressed the importance of consent by declaring, once again, “if she doesn't consent--or can't consent, it's a crime.” 116 The Administration also developed a Checklist for Sexual Misconduct Policies, and one recommendation is to clearly define all prohibited conduct as well as consent itself. 117 The checklist explains that consent must be affirmative, i.e., “voluntary agreement to engage in sexual activity,” and “silence or absence of resistance does not imply consent.” 118 As a result of this recommendation to define consent in campus sexual misconduct policies, many schools have developed affirmative consent provisions governing students' conduct.

F. Proposed Campus Accountablity and Safety Act

While the above legislation and administrative action illustrate how the issue of sexual assault has been addressed, additional steps are being taken to further the cause. In July 2014, Senator Claire McCaskill and bipartisan cosponsors introduced the Campus Accountability and Safety Act (“CASAct”), 119 and the bill was reintroduced in February 2015. 120 This bill represents another proactive step to address campus sexual assault and would provide even more accountability *54 and transparency from higher education institutions. 121 Among other reforms, CASAct would: (1) require higher education institutions that receive federal financial assistance to designate confidential advisors to coordinate services for victims of sexual violence; (2) require training for campus personnel involved in sexual assault services; (3) require a standardized, online, annual survey of students regarding their experiences with sexual violence and harassment; 122 and (4) require the disclosure of additional information with respect to sex offences. 123 Other key provisions of the legislation require more fairness in the campus disciplinary process, require higher education institutions to enter into a memorandum of understanding with local law enforcement agencies, and impose new penalties for Title IX and Clery Act violations. 124 This proposed legislation ensures that the issue of sexual assault remains on the national radar.

II. The “Yes Means Yes” Affirmative Consent Standard

As previously mentioned, the White House's Checklist for Sexual Misconduct Policies recommended that colleges and universities expressly define affirmative consent. 125 The affirmative consent definition should explain that the participants must have a “voluntary agreement to engage in sexual activity” and that “silence or absence

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 88 7 “LET'S TALK ABOUT SEX”: LEGISLATING AND EDUCATING..., 50 U.S.F. L. Rev. 35 of resistance does not imply consent.” 126 The concept of affirmative consent, however, has been around for decades; for example, the Canadian *55 government adopted affirmative consent as the country's legal standard in 1992. 127

At educational institutions across the nation, the affirmative consent standard shifts the burden during a campus disciplinary board's investigation and adjudication of sexual misconduct allegations. 128 Instead of asking a sexual assault complainant if he or she said “no” during the sexual encounter, under an affirmative consent standard, the questioning is directed toward the accused and becomes a matter of whether the alleged victim actually expressed a “yes.” 129 Yet, this affirmative consent standard 130 is not consistent with the legal definition of rape in the United States' criminal justice system. 131 In fact, *56 although the Federal Bureau of Investigation changed the Uniform Crime Report's definition of sexual assault in 2013 to include the phrase “without the consent of the victim,” 132 fewer than ten states include non-consensual sex in the legal definition of rape. 133 Despite this lack of reconciliation between campus affirmative consent policies and state rape law, the affirmative consent movement is continuing to gain attention on college campuses and in state legislatures.

A. Affirmative Consent Policies on College Campuses

The affirmative consent standard extends to college disciplinary boards that investigate allegations of sexual misconduct on campus. 134 In 1991, Antioch College 135 pioneered the concept of affirmative consent on college campuses when it implemented a Sexual Offense Prevention Policy. 136 According to this policy, a person consents by “verbally asking and verbally giving or denying consent for all levels of sexual behavior.” 137 When the Antioch yes means yes approach was first introduced, it was widely mocked. 138 In a sketch on Saturday *57 Night Live (“SNL”) called “Is It Date Rape?,” the approach was viewed as reducing a sexual encounter to a series of robotic yes and no questions. 139 In light of the current affirmative consent movement, that critique has been renewed, as have other critiques such as the role of alcohol in one's ability to give consent. 140

Despite the critiques of the affirmative consent standard, according to the National Center for Higher Education Risk Management, 141 more than 800 colleges 142 have adopted a policy based on a consent-based model and have included a definition of affirmative consent in their sexual assault policies. 143 Furthermore, colleges and universities have embraced efforts to educate students and others about affirmative consent and sexual violence in general, whether through social *58 media campaigns, 144 bystander intervention campaigns, 145 or other prevention programming. 146 Some schools are requiring prevention programs and affirmative consent education during freshman orientation, 147 while other schools are developing longer interventions to educate about sexual violence and affirmative consent. 148 Other *59 programs have also been created to promote the affirmative consent movement, including new agreements by campus Greek organizations to provide comprehensive information about affirmative consent initiatives. 149 Of course, although these proactive steps are helping to address the problem of campus sexual assault, institutions of higher education should continue to be proactive. This entails reviewing and modifying policies and procedures for handling alleged sexual misconduct, and evaluating the effectiveness of the awareness and prevention programming. 150

B. Mandating the Affirmative Consent Standard

Legislation is another way to bring legitimacy to the issue of sexual violence on colleges campuses. 151 In the past year, state legislatures have started taking steps to ensure that colleges and universities adopt a yes means yes affirmative consent standard. In September 2014, California became the first state to adopt yes means yes legislation to address sexual assault on college campuses. 152 The law seeks to improve how colleges and universities handle allegations of sexual violence *60 and to clarify the standards by requiring affirmative consent during a sexual encounter.

Specifically, California Senate Bill 967 added language to section 67386 of the Education Code, 153 requiring the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt policies governing sexual assault, domestic violence, dating violence, and stalking. 154 These policies must include an affirmative consent standard, 155 and consent must be defined as an affirmative, conscious, and voluntary agreement to engage in sexual activity. 156 Under this standard, each person involved in the sexual encounter is responsible for ensuring that he or she has the affirmative consent of all others. 157 Affirmative consent must also be ongoing and may be revoked at any time. 158 Furthermore, the adopted affirmative consent policies may not excuse an alleged lack of affirmative consent when “the accused's belief in affirmative consent arose from intoxication or recklessness of the accused.” 159 In this regard, a person should take reasonable steps to ascertain affirmative consent under the circumstances. 160

The bill's supporters praise the legislation as an important step in preventing sexual violence on college campuses and opine that the affirmative consent language will reduce the ambiguity that can lead to sexual assault encounters. 161 However, opposition to codifying the *61 affirmative consent standard exists for several reasons. Critics of the affirmative consent legislation claim the standard constitutes a dangerous overreaching into college students' bedrooms, 162 will detract from the spontaneity of sexual encounters, 163 and is simply too ambiguous because nonverbal communication is too hard to interpret. 164 In *62 addition, some critics argue that male students may start preemptively accusing women of sexual assault 165 and that ultimately the affirmative consent standard is a misguided policy that adds to the infringement on male students' civil rights. 166 Advocates of the affirmative consent standard dismiss these critiques and claim that the policy does not necessarily change the way most people already interact with each other. 167 Additionally, advocates believe it equalizes women and men because their sexual encounters should be based on mutual desire and enthusiasm. 168

Admittedly, the circumstances that qualify as sexual assault may be hard to identify, but fundamentally, the affirmative consent standard encourages those in a sexual encounter to simply express their consent. As a result, the burden in campus disciplinary proceedings shifts to the accused to articulate how he or she obtained consent from the other person. 169

Furthermore, under California's affirmative consent law, the governing boards must implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. 170 Institutions must include outreach efforts during every incoming student's orientation and must generally make *63 students aware of the institution's sexual misconduct policies, including the affirmative consent standard. 171 Thus, this component of the law ensures that students will be educated about the affirmative consent standard.

Following California's lead, other states have begun addressing sexual assault by mandating the affirmative consent standard. In early 2015, New York Governor Andrew Cuomo announced that the sixty-four campuses of

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 90 9 “LET'S TALK ABOUT SEX”: LEGISLATING AND EDUCATING..., 50 U.S.F. L. Rev. 35 the State University of New York will mandate an affirmative consent policy in the same way California does. 172 In July, he signed legislation that requires a uniform definition of consent for all of New York's public and private colleges. 173 Recently, a number of other states 174 have proposed legislation addressing the affirmative consent standard, including: Arizona, 175 Connecticut, 176 Hawaii, 177 *64 Iowa, 178 Kansas, 179 Maryland, 180 Minnesota, 181 Missouri, 182 New Jersey, 183 North Carolina, 184 and West Virginia. 185 Therefore, it is apparent that state legislatures are increasingly attempting to require colleges and universities to adopt an affirmative consent standard.

III. High School Education on Affirmative Consent

The action taken by legislators, the Obama Administration, and colleges and universities in regard to the affirmative consent standard reinforces the importance of preventing sexual assault. Most efforts, however, have focused on awareness and prevention at the college level. 186 To establish effective prevention of sexual violence, educators should ensure that discussions about healthy relationships and affirmative consent are occurring before students attend freshmen orientation. 187 One proactive step in helping to establish boundaries of acceptable sexual behavior is to start education about affirmative consent during high school. 188

*65 There are logical, compelling reasons to make instruction on the affirmative consent standard a part of the high school curriculum. Title IX applies to all educational institutions that receive federal funds, 189 so either state governments or the federal government should consider requiring school districts to take additional steps to prevent sexual harassment. 190 The White House Task Force that issued the college guidelines in 2014 is now considering how those recommendations apply to elementary and secondary schools. 191 Moreover, the concern about Title IX complaints being filed should “force” primary and secondary schools to consider how they are handling sexual assault education and protocol. 192 In addition, statistical evidence illustrates that young people start engaging in sexual activity before attending college; 193 therefore, their understanding of acceptable sexual behavior premised on affirmative consent is vital to promoting healthy relationships and preventing sexual violence on college campuses. 194

Finally, the large majority of states already have a curriculum framework that supports the addition of instruction on the affirmative consent standard, 195 and one state has recently passed legislation to *66 require such education. 196 Including instruction on affirmative consent during high school is a logical step toward preventing sexual assault on college campuses. Thus, further legislation may be necessary to guarantee that high schools implement educational programs that include instruction on affirmative consent.

A. Sexual Activity and Harassment Before College

The problem of sexual violence is not isolated to college campuses. As explained below, research shows that today's youth is engaged in sexual activity, and unfortunately, sexual violence also occurs at younger ages. Thus, while some opponents think that sexual assault and affirmative consent are not appropriate topics for high school students, 197 they should not ignore the reality of the sexual conduct students are engaged in during high school.

First, a person's approach to relationships and sexual behavior is typically established by the time he or she starts college. 198 A recent survey by the Division of Violence Prevention in the Centers for Disease Control and Prevention (“CDC”) indicates that more than forty-six percent of all high school students say they have had

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 91 10 “LET'S TALK ABOUT SEX”: LEGISLATING AND EDUCATING..., 50 U.S.F. L. Rev. 35 sex. 199 Furthermore, fifteen percent of high school students have had sex with four or more partners during their lifetime. 200

Second, research shows that sexual harassment starts occurring at a young age, and data has revealed a correlation between early sexual *67 experiences and teen dating violence and abuse. 201 In a nationwide survey of students in grades eight through eleven, eighty-one percent reported experiencing sexual harassment during their school lives. 202 In another recent survey of students in grades seven through twelve, nearly half stated that they experienced some form of sexual harassment during the 2010-2011 school year. 203 In addition, a CDC study revealed that “nearly one in ten young adults 204 [have admitted] to committing some type of sexual violence, ranging from unwanted touching or kissing to rape.” 205 The Justice Department also found that nearly twenty percent of girls between the ages of fourteen and seventeen have been victims of sexual assault or attempted sexual assault, 206 and that forty-two percent of all female rape victims were first assaulted before they turned eighteen. 207 Most recently, a study published in The Journal of the American Medical Association (“JAMA”) Pediatric revealed that around six percent of girls and three percent of boys reported experiencing both physical and sexual dating violence in the last twelve months. 208 Taken together, this statistical evidence shows that the sexual assault problem starts before young people reach the college age.

*68 Furthermore, “[s]exual violence can have a negative impact on young people's lives moving forward, which further reinforces the idea that we do need to address the issue [of sexual assault] early on.” 209 In fact, research shows that young students who reported both physical and sexual violence were more likely to engage in risky behavior, such as drug use, alcohol abuse, and risky sexual behaviors. 210 These students are also more likely to exhibit depressive symptoms and to report suicidal thoughts. 211 Thus, an appropriate course of action is to require education about sexual assault during high school, including education about the affirmative consent standard. This education will ensure that high school students will more fully understand acceptable sexual behavior. Furthermore, it may also increase the rate of reporting because early education can empower victims to report the sexual violence. 212

B. Implementing Affirmative Consent Education

Many states already have a framework in place to implement affirmative consent education in the high school curriculum. 213 Accordingly, to have more comprehensive education, all secondary high schools should include mandatory education about the affirmative consent standard. This education can be included in either existing health curriculum or sex education curriculum that is set out in the state's Education Code, or in other awareness and prevention programming.

Sex education “is the process of acquiring information and forming attitudes and beliefs about sex, sexual identity, relationships and intimacy” and “is also about developing young people's skills so that they make informed choices about their behaviour . . . .” 214 As of November 1, 2015, twenty-two states and the District of Columbia require public schools to teach some form of sex education. 215 Indeed, public *69 opinion polls consistently show that more than eighty percent of Americans support teaching comprehensive sex education in junior high and high schools. 216 Most school districts do, however, allow parents to opt their children out of sex education curriculum. 217

Similarly, many states recommend or require students to receive health education. 218 In addition, in some states prevention initiatives for teen dating violence include early education about safe dating practices. 219 At least fourteen states have laws that encourage or require school boards to develop curriculum on teen dating violence. 220 Thus, another option for states is to require affirmative consent education as part of health education or as part of programming about safe teen dating practices. 221

*70 As with the college affirmative consent law, California is leading the way in regard to high school education on the topic. Not all school districts in California require health education, but Senate Bill 695 mandates discussions of affirmative consent in those school districts that do require health education credits for graduation. 222 Building on the yes means yes campus sexual assault legislation, California State Senators Kevin De León and Hannah-Beth Jackson introduced Senate Bill 695 in early 2015, 223 and the legislation was approved by the Governor in October 2015. 224 This legislation transforms high school health curricula to include instruction on sexual assault and violence. 225 Specifically, Senate Bill 695 requires health courses, which are a condition of graduation at a majority of California high schools, to include information on sexual assault and the importance of developing healthy relationships. 226 The health course must provide instruction on the affirmative consent standard that is consistent with the affirmative consent law already passed for California colleges and universities. 227 As such, Section 51225.36 of the California Education Code was amended as follows: If the governing board of a school district requires a course in healtheducation for graduation from high school, the governing board of the school district shall include instruction in sexual harassment and violence, including but not limited to, information on the affirmative consent standard, as defined in paragraph (1) of subdivision (a) of Section 67386. 228 .

*71 Michigan is following California's lead, as legislation requiring high school education about affirmative consent was introduced in September 2015. 229 In addition, there is pending legislation in other states that would either authorize school districts to provide sexual violence awareness and prevention programs or mandate sexual violence education as part of the health education curricula. 230 Several states also have pending legislation to add some type of education about sexual violence in general. 231

Under current federal law, health and sex education classes are not required to include any sexual assault prevention as part of the curriculum. 232 However, the Teach Safe Relationships Act, a federal bill introduced by Senators Claire McCaskill and Tim Kaine, would expand comprehensive health education and require schools to teach “safe relationship behavior” aimed at preventing sexual assault, domestic violence, and dating violence. 233 Under the Teach Safe Relationships *72 Act, schools could develop specific curricula, and grants would be available to train teachers on sexual assault prevention. 234

Of course, whether states choose to require sexual assault education that addresses the affirmative consent standard as part of health curriculum, sex education, or other awareness and prevention programming, states need to take action to help high school students gain an understanding of this issue. State legislators should propose legislation to implement the necessary curriculum requirements so our youth are prepared in advance for the affirmative consent standard prevalent on college campuses.

Conclusion

Sexual assault on college campuses has been receiving an unprecedented level of attention across the nation. The Obama Administration, legislators, and colleges and universities are all advancing the goal of preventing sexual violence 235 and encouraging a “Let's Talk About Sex” dialogue. One aspect of the conversation involves transitioning from a “no means no” approach to a “yes means yes” affirmative consent standard. Despite the criticisms of the affirmative consent standard, 236 the momentum of the concept has recently increased as colleges and universities continue to adopt affirmative consent policies. 237 In addition, following California's lead, state legislatures are also proposing affirmative consent laws. 238

The shift in conversation regarding sexual communication and sexual assault hinges on effective awareness and prevention education. While institutions of higher education are implementing sexual assault awareness and prevention programming, 239 the high school environment is a key setting where students' sexual behaviors can be shaped. Thus, states should require effective high school education on the affirmative consent standard, whether as part of sex education, health education, or other prevention programming. 240 Indeed, instruction about the affirmative consent standard will enable young *73 people to more fully understand their responsibilities during a sexual encounter. Admittedly, affirmative consent education during high school will not be sufficient alone to halt sexual assault on college campuses, but it is a step in the right direction.

Footnotes a1 Associate Professor of Law and Assistant Dean of Educational Effectiveness, Texas Tech University School of Law; B.A. magna cum laude, Westminster College (Fulton, Missouri), 1995; M.Ed., summa cum laude, Texas Tech University, 1997; J.D., Texas Tech University School of Law, 2001. Professor Humphrey also serves as a Director of the Texas Tech University Pre-Law Academy. She would like to thank her research assistant, Theresa Golde, and the law school's writing specialist, Dr. Natalie Tarenko. She would also like to thank her colleagues, Rishi Batra, Eric Chiappinelli, and Shery Kime-Goodwin, for their continued support.

1 Remarks by the President at “It's On Us” Campaign Rollout, WHITE HOUSE (Sept. 19, 2014), https:// www.whitehouse.gov/the-press-office/2014/09/19/remarks-president-its-us-campaign-rollout.

2 “Let's Talk About Sex” is a popular hip-hop song about safe sex and the AIDS epidemic. SALT-N-PEPA, LET'S TALK ABOUT SEX (Next Plateau 1991). The phrase “let's talk about sex” has also been connected with the discussion of the affirmative consent standard. AFFIRMATIVE CONSENT, http://affirmativeconsent.com/ (last visited Oct. 27, 2015); see also Katie McDonough, Let's Talk About Sex (More): Education, Conversation is the Way to Help Prevent Sexual Assault, SALON (Aug. 28, 2014, 6:43 AM), http://www.salon.com/2014/08/28/ lets_talk_about_sex_more_education_conversation_is_the_way_to_help_prevent_sexual_assault/.

3 Emma Sulkowicz, ‘My Rapist is Still on Campus,’ TIME (May 15, 2014), http://time.com/99780/campus-sexual- assault-emma-sulkowicz/. But see Cathy Young, Columbia Student: I Didn't Rape Her, DAILY BEAST (Feb. 4, 2015), http://www.thedailybeast.com/articles/2015/02/03/columbia-student-i-didn-t-rape-her.html (reporting that accused Columbia student Paul Nungesser, who was cleared of sexual misconduct allegations by the university, denies sexually assaulting Emma Sulkowicz).

4 Theresa Watanabe, More College Men Are Fighting Back Against Sexual Assault Cases, L.A. TIMES (June 7, 2014, 6:15 PM), http://www.latimes.com/local/la-me-sexual-assault-legal-20140608-story.html#page=1.

5 Tyler Kingkade, Texas Tech Frat Loses Charter Following ‘No Means Yes, Yes Means Anal’ Display, HUFFINGTON POST (Oct. 9, 2014, 12:59 PM), http://www.huffingtonpost.com/2014/10/08/texas-tech-frat-no- means-yes_n_5953302.html; see also Marina Watson Peláez, Yale Suspends Delta Kappa Epsilon Fraternity After Sexist Chants, TIME (May 18, 2011), http://newsfeed.time.com/2011/05/18/yale-suspends-delta-kappa-epsilon- fraternity-after-sexist-chants/ (reporting that new members of a fraternity at Yale University allegedly chanted phrases

such as “No Means Yes! Yes Means Anal!” and other obscenities against women, and the fraternity was banned from recruiting students for five years).

6 Kristen Lombardi, Sexual Assault on Campus: Flurry of New Legislation Targets Sexual Assault on Campus, CTR. FOR PUB. INTEGRITY (Aug. 1, 2014, 1:23 PM), http://www.publicintegrity.org/2014/07/30/15185/flurry-new- legislation-targets-sexual-assault-campus (statement of Congresswoman Carolyn Maloney, D. NY) (“Sexual assault on our college campuses has reached epidemic proportions.”).

7 Christopher P. Krebs et al., The Campus Sexual Assault (CSA) Study, NCJRS (Dec. 2007), https://www.ncjrs.gov/ pdffiles1/nij/grants/221153.pdf (explaining that a variety of factors contribute to the danger of sexual assault on college campuses, including the large number of college social gatherings that involve alcohol or other substances); Rana Sampson, Acquaintance Rape of College Students, COPS 1, 13 (2002), http://www.popcenter.org/problems/ pdfs/Acquaintance_Rape_of_College_Students.pdf (addressing the college environment that may lead to the high prevalence of sexual assault on college campuses, including the role of alcohol). Furthermore, women who frequently attend fraternity parties are more likely than others to be sexually assaulted. See Krebs, supra note 7, at 5-8; see also Sampson, supra note 7, at 14-15. And, multiple studies have found that students in fraternities were significantly more likely to have committed rape than non-Greek men. E.g., Greek Sexual Assault Prevention Initiative, EMORY UNIV., http://studenthealth.emory.edu/hp/respect_program/greek_life.html (last visited Apr. 2, 2015) (reporting that the 2012-13 Title IX reports collected for Emory University revealed that 48% of all reported sexual assaults occurred in a fraternity house); see also Katie J.M. Baker, The Accused, BUZZFEED (Nov. 20, 2014, 9:20 PM), http://www.buzzfeed.com/katiejmbaker/accused-men-say-the-system-hurting-college-sexual-assault- su#.cd1qOxO7b (reporting that some studies show that fraternity members are three times more likely to commit rape than other men on campus).

8 While both men and women are sexually assaulted, the number of males who are sexually assaulted is significantly less than females. D. KELLY WEISBERG, DOMESTIC VIOLENCE: LEGAL AND SOCIAL REALITY 30 (2012); Sofi Sinozich & Lynn Langton, Special Report: Rape and Sexual Assault Victimization Among College-Age Females , 1995- 2013, U.S. Dep't of Justice 1, 5 (2014), http://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf. (finding that for the period of 1995-2013, the rate of rape and sexual assault victimization was lower for males ages eighteen to twenty- four than for females, as college-age male victims accounted for only 17% of rape and sexual assault victimizations). Therefore, this Article focuses more on the sexual assault of females.

9 Krebs, supra note 7, at 2-1; see also Bonnie S. Fisher, Francis T. Cullen & Michael G. Turner, The Sexual Victimization of College Women, U.S. DEP'T OF JUSTICE 1, 10 (2000), http://www.ncjrs.gov/pdffiles1/ nij/182369.pdf; Sexual Violence: Facts at a Glance, CDC (2012), http://www.cdc.gov/violenceprevention/pdf/sv- datasheet-a.pdf; Dana Goldstein, The Dueling Data on Campus Rape, THE MARSHALL PROJECT (Dec. 11, 2014), https://www.themarshallproject.org/2014/12/11/the-dueling-data-on-campus-rape (reporting that the National Crime Victimization Survey in December 2014 found that a very small percentage of female students have been sexually assaulted and explaining the discrepancies in the sexual assault research based on variations in the definition of rape and sexual assault, the wording of survey questions, and the context in which the questions were asked and answered).

10 See infra Part III.A.

11 Krebs, supra note 7, at 5-15; see also Sinozich & Langton, supra note 8, at 7 (finding that for both college students and nonstudents, the offender was known to the victim in about 80% of rape and sexual assault victimizations); see also SUSAN ESTRICK, REAL RAPE 10-15 (1987) (discussing the legal system's disparate treatment of stranger rape, perceived as “real rape,” and acquaintance rape, which constitutes the majority of sexual abuses).

12 Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 LOY. U. CHI. L.J. 205, 220 (2011) (addressing the public perceptions that an alleged rapist must be a complete stranger to the alleged victim); Emily Yoffe, College Women: Stop Getting Drunk, SLATE (Oct. 15, 2013, 11:55 PM), http://www.slate.com/ articles/double_x/doublex/2013/10/sexual_assault_and_drinking_teach_women_the_connection.html (explaining that acquaintance rape is often considered to be a “he said, she said issue” and arguing that it may be an acceptable risk of drinking alcohol).

13 Joseph Shaprio, Myths That Make It Hard To Stop Campus Rape, NPR (Mar. 4, 2010, 12:00 AM), http://www.npr.org/ templates/story/story.php?storyId=124272157; see also Jennifer Peebles & Kristin Lombardi, Undetected Rapists on Campus: A Troubling Plague of Repeat Offenders, CTR. FOR PUB. INTEGRITY (Feb. 26, 2010, 12:00 PM), http://www.publicintegrity.org/2010/02/26/4404/undetected-rapists-campus-troubling-plague-repeat-offenders; David Lisak & Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 VIOLENCE & VICTIMS 71, 73-84 (2002) (determining that the majority of rapists in college were admitted repeat offenders).

14 Amy Chmielewski, Note, Defending the Preponderance of the Evidence Standard in College Adjudications of Sexual Assault, 2013 BYU EDUC. & L.J. 143, 150 (2013).

15 Fisher, Cullen & Turner, supra note 9, at 24 (finding that 95.2% of completed rapes and 95.8% of attempted rapes are not reported to law enforcement officials); see also W. David Allen, The Reporting and Underreporting of Rape, 73 S. ECON. J. 623, 623 (2007); Eliza Gray, Why Victims of Rape in College Don't Report to the Police, TIME (June 23, 2014), http://time.com/2905637/campus-rape-assault-prosecution (reporting on a roundtable discussion by Senator Claire McCaskill about law enforcement involvement in campus sexual cases); Sinozich & Langton, supra note 8, at 9 (finding that in the age group eighteen to twenty-four, 80% of sexual assaults on campus were not reported to police); Amanda Marcotte, Why Not Just Turn Campus Rape Allegations Over to the Police? Because They Don't Investigate, SLATE (Sept. 15, 2014, 1:51 PM), http://www.slate.com/blogs/xx_factor/2014/09/15/ new_york_times_on_the_laughable_tallahassee_police_response_to_sexual_assault.html; Tyler Kingkade, Prosecutors Rarely Bring Charges in College Rape Cases, HUFFINGTON POST (June 17, 2014, 7:31 AM), http:// www.huffingtonpost.com/2014/06/17/college-rape-prosecutors-press-charges_n_5500432.html; see generally Karen Oehme, Nat Stern & Annelise Mennicke, A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers, 38 HARV. J.L. & GENDER 337 (2015) (positing that the chronically low rate of reporting to law enforcement officials is related to the lack of women's representation in campus police agencies).

16 See Justin Neidig, Note, Sex, Booze, and Clarity: Defining Sexual Assault on a College Campus, 16 WM. & MARY J. WOMEN & L. 179, 180 (2009).

17 See Nancy Chi Cantalupo, Campus Violence: Understanding the Extraordinary Through the Ordinary, 35 J.C. & U.L. 613, 618-19 (2009).

18 Susan Milligan, The Problem With California's ‘Yes Means Yes' Law, U.S. NEWS (Aug. 29, 2014, 1:30 PM), http://www.usnews.com/opinion/blogs/susan-milligan/2014/08/29/the-problem-with-californias-yes- means-yes-campus-sexual-assault-law (explaining that the problem is that sexual violence is wrongly dealt with by campus authorities instead of law enforcement because campus security is not equipped to handle such crimes and schools have a vested interest in keeping such crimes secret).

19 Tyler Kingkade, Frats Push to Make Rape Victims Choose Between Police or School for Investigations, HUFFINGTON POST (Mar. 31, 1015, 6:20 PM), http://www.huffingtonpost.com/2015/03/31/fraternities-sexual- assault_n_6978206.html (reporting that groups say they plan to push Congress to keep colleges from investigating and adjudicating allegations of sexual assault until after the completion of the criminal investigation and trial).

20 See generally 20 U.S.C. § 1681 (2014) (addressing the prohibition against discrimination under any education program or activity receiving federal financial assistance).

21 See infra Part II.A.

22 Id.

23 See infra Part II.

24 See, e.g., CAL. EDUC. CODE § 67386(a) (West 2014).

25 Jake New, The “Yes Means Yes” World, SLATE (Oct. 17, 2014, 2:06 PM), http://www.slate.com/articles/life/ inside_higher_ed/2014/10/ affirmative_consent_what_will_yes_means_yes_mean_for_sex_on_college_campuses.html.

26 See infra Part I.

27 See infra Part II.

28 See infra Part II.B.

29 See infra Part III.

30 See infra Part III.

31 Pub. L. No. 89-329, 79 Stat. 1219 (1965) (codified as amended in various sections of 42 U.S.C.).

32 Title IX of the Civil Rights Act of 1964 did bind institutions from discriminating on the basis of race, color, or national origin. Kimberly A. Mango, Comment, Students Versus Professors: Combating Sexual Harassment Under Title IX of the Education Amendments of 1972, 23 CONN. L. REV. 355, 361-62, 366 (1991).

33 20 U.S.C. § 1681(a) (2014).

34 Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979) (explaining the purpose of Title IX of the Education Acts of 1972). Title IX is implemented through the Code of Federal Regulations and provides that “[a] recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part.” 34 C.F.R. § 106.8(b) (2015); see also 28 C.F.R. § 54.135(b) (2015) (Department of Justice regulations); Lexie Kuznick & Megan Ryan, Changing Social Norms? Title IX and Legal Activism Comments from the Spring 2007 Harvard Journal of Law & Gender Conference, 31 HARV. J.L. & GENDER 367, 373-74 (2008).

35 Mango, supra note 32, at 380 (explaining that “[i]n 1980, the National Advisory Council on Women's Educational Programs was commissioned to conduct a legal review of Title IX”).

36 Id.

37 Id.

38 Id. at 381 (quoting Office for Civil Rights of the Department of Education Policy Memorandum from Antonio J. Califa, Director for Litigation, Enforcement and Policy Service, OCR, to Regional Civil Rights Directors, Title IX and Sexual Harassment Complaints, at 2 (Aug. 31, 1981)). This sexual harassment definition also applies to elementary and secondary education schools because they fall under the scope of Title IX's coverage. See 20 U.S.C. § 1681(c) (2014).

39 Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76 (1992) (holding that monetary damages are available in an implied private action); see also Alexander v. Yale, 631 F.2d 178 (2d Cir. 1980). Earlier in Gebser v. Lago Vista Independent School District, the United States Supreme Court recognized that a recipient of federal educational funds intentionally violates Title IX and is subject to a private damages action, where the recipient is “deliberately indifferent” to known acts of teacher-student discrimination. 524 U.S. 274, 277 (1988). Then, in Davis ex rel. LaShonda D. v. Monroe County Board of Education, the United States Supreme Court extended the private damages actions recognized in Gebser to cases where the harasser is a student, rather than a teacher. 526 U.S. 629, 633 (1999). The Court in Davis held that a complainant may prevail in a private Title IX actions against a school district in cases of student-on-student harassment where the funding recipient is: (a) deliberately indifferent to sexual harassment of which the recipient has actual knowledge, and (b) the harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational benefits or opportunities provided by the school. Id. at 669-76. The Court noted that in certain circumstances a single sexual encounter by a student could be sufficient to create a hostile environment claim under Title IX. Id. at 652-53.

40 See generally 20 U.S.C. § 1682 (1972) (directing and authorizing federal administrative agencies, which provide financial assistance to educational programs, to issue rules and guidelines to achieve the objectives of Title IX).

41 Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979) (holding that an individual can bring suit against a higher education institution for failing to conform with the provisions of Title IX).

42 34 C.F.R. § 106.1 (2015).

43 Tyler Kingkade, A Number of Colleges Are Under Scrutiny For Sexual Harassment, But You Wouldn't Know It, HUFFINGTON POST (May 19, 2015, 9:59 AM), http://www.huffingtonpost.com/2015/05/19/colleges-sexual- harassment_n_7309444.html (reporting that as of May 13, 2015, there are 162 cases involving either sexual harassment or sexual assault and harassment under investigation at 143 postsecondary institutions); see also Tara Culp-Ressler, These Are the Colleges and Universities Now Under Federal Investigation for Botching Rape Cases, THINKPROGRESS (Jan. 13, 2015, 9:00 AM), http://thinkprogress.org/health/2015/01/13/3610865/title-ix- investigations/ (reporting that as of January 2015, the Department of Education was investigating ninety-five schools for possible Title IX violations).

44 Tyler Kingkade, Harvard Law Gave More Rights To Accused Students In Sexual Harassment Cases, Feds Find, HUFFINGTON POST (Dec. 30, 2014, 7:59 PM), http://www.huffingtonpost.com/2014/12/30/harvard-law- harassment-title-ix_n_6396350.html (reporting that the OCR officials determined Title IX violations in six cases and that the Harvard Law School agreed to overhaul the way it handles sexual harassment complaints among its students); see also Tyler Kingkade, Probe Finds Princeton University Violated Title IX In Its Handling of Sexual Assault Cases, HUFFINGTON POST (Nov. 5, 2014, 5:59 PM), http://www.huffingtonpost.com/2014/11/05/princeton-title-ix-sexual- assault_n_6107756.html (reporting that Princeton University had to reimburse tuition costs for three sexual assault victims).

45 Some schools have settled the Title IX lawsuits filed against them. Jake New, Major Sexual Assault Settlement, INSIDE HIGHER ED (July 21, 2014), http://www.insidehighered.com/news/2014/07/21/u-connecticut-pay-13-million-settle- sexual-assault-lawsuitsthash.DYYNvyyU.dpbs (reporting that the University of Connecticut agreed to pay nearly $1.3 million to settle a federal lawsuit alleging the mishandling of students' sexual assault complaints).

46 Columbia Comes Under Fire for Handling of Sexual Assault Cases, NPR (Apr. 25, 2014); see also Group Files Title IX and Other Complaints Against Columbia, BWOG (Apr. 24, 2014, 11:13 AM), http://bwog.com/2014/04/24/group- files-title-ix-complaint-against-columbia/ (explaining that twenty-three students filed complaints against Columbia University for alleged violations of Title II, Title IX, and the Clery Act).

47 Soraya Nadia McDonald, It's Hard to Ignore a Woman Toting a Mattress Everywhere She Goes, Which is Why Emma Sulkowicz is Still Doing It, WASH. POST (Oct. 29, 2014), http://www.washingtonpost.com/news/morning-mix/wp/2014/10/29/its-hard-to-ignore-a-woman-toting-a- mattress-everywhere-she-goes-which-is-why-emma-sulkowicz-is-still-doing-it/ (explaining that after the university held a hearing and the student Sulkowicz accused was found not guilty, she appealed to Columbia's dean, and the school refused to expel her alleged assailant).

48 Charlotte Alter, Columbia Activist Emma Sulkowicz is Going to the State of the Union, TIME (Jan. 20, 2015), http:// time.com/3674450/emma-sulkowicz-gillibrand-state-of-the-union/; see also Young, supra note 3; Naomi Schaeffer Riley, Columbia Rape Case Is Not Justice - It's Shaming Without Proof, N.Y. POST (Jan. 8, 2015 6:15 AM), http:// nypost.com/2015/02/08/columbia-mattress-rape-case-is-not-justice-its-shaming-without-proof/.

49 Baker, supra note 7 (stating that since 2011 more than thirty men found responsible for sexual misconduct as a result of a campus disciplinary proceeding have filed lawsuits against their schools); Doe v. Wash. & Lee Univ., No. 6:14- cv-00052-NKM (W.D. Va. Dec. 13, 2014); Sterrett v. Cowan, No. 14-CV-11619, 2015 BL 28737 (E.D. Mich. Feb. 4, 2015) (holding that the plaintiff sufficiently alleged facts to state a due process claim that he was denied a “meaningful hearing” as part of the disciplinary adjudication procedure); see also Ariel Kaminer, New Factor in Campus Sexual Assault Cases: Counsel for the Accused, N.Y. TIMES (Nov. 19, 2014), http://www.nytimes.com/2014/11/20/nyregion/ new-factor-in-campus-sexual-assault-cases-counsel-for-the-accused.html?_r=0 (reporting that Columbia University recently became one of the few colleges to offer free legal help to both accusers and the accused).

50 Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034, 12034 (Mar. 13, 1997), available at http://www.gpo.gov/fdsys/pkg/FR-1997-03-13/pdf/97-6373.pdf. First published in 1997, this document explained two types of sexual harassment conduct: quid pro quo harassment and hostile-environment harassment. Id. at 12038.

51 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 66 Fed. Reg. 5512 (Jan. 19, 2001), available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf [hereinafter the 2001 Guidance Document].

52 2001 Guidance Document, supra note 51, at 13-15; see also 34 C.F.R. § 106.8(a) (2014) (requiring that an institution designate at least one employee to coordinate its efforts to comply with Title IX).

53 2001 Guidance Document, supra note 51, at 2, 14-21.

54 Chmielewski, supra note 14, at 163 (citing E.H. Schopler, Annotation, Right of Student to Hearing on Charges Before Suspension or Expulsion from Educational Institution, 58 A.L.R.2d 903 (1958)).

55 2001 Guidance Document, supra note 51, at 22.

56 See, e.g., Board of Curators v. Horowitz, 435 U.S. 78, 88 (1978) (“A school is an academic institution, not a courtroom or administrative hearing room.”); Granger v. Klein, 197 F. Supp. 2d 851, 874 n.11 (E.D. Mich. 2002) (citing Paredes v. Curtis, 864 F.2d 426 (6th Cir. 1988)) (holding that the opportunity to cross-examine an accuser is not part of the due process requirement in the academic setting)).

57 U.S. DEP'T OF EDUC., OFFICE FOR CIVIL RIGHTS, DEAR COLLEAGUE LETTER: SEXUAL VIOLENCE 1 (2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf [hereinafter “DEAR COLLEAGUE” LETTER] (addressing sexual violence as a form of sexual harassment under Title IX). While the “Dear Colleague” Letter authoritatively represents OCR enforcement policy, whether the OCR's position would withstand judicial review is an open question.

58 Id. at 1-14.

59 Id. at 14-18.

60 Id. at 6 (explaining that schools must adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints). Although, the grievance procedures do not need to be separate from other administrative disciplinary procedures. Id. at 8. Also, to be proactive, schools should also publish a notice of nondiscrimination. Id. at 6-7.

61 “DEAR COLLEAGUE” LETTER, supra note 57, at 6, 14.

62 Id. at 14.

63 Id. at 14-15.

64 Id. at 8-14.

65 Id. at 11.

66 Barclay Sutton Hendrix, Note, A Feather on One Side, A Brick on the Other: Tilting the Scale Against Males Accused of Sexual Assault in Campus Disciplinary Proceedings, 47 GA. L. REV. 591, 610-20 (2013) (arguing that: the steps taken by the OCR violate the procedural due process rights of accused students because the preponderance of the evidence standard is too low; discouraging schools from allowing accused students to cross-examine their accusers does not comport with basic fairness; and allowing an accuser to appeal borders on a “double jeopardy” violation).

67 Chmielewski, supra note 14, at 164-65 (defending the use of the preponderance of the evidence standard in school adjudications for sexual assault based on, among other things, the nature of the proceeding and the standard's equal consideration of the rights of complainants and respondents); Lavinia M. Weizel, The Process that is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-on-Student Sexual Assault Complaints, 53 B.C. L. REV. 1613, 1629-30 (2012) (arguing that the preponderance of the evidence standard is sufficient to ensure due process for students who have been accused of sexual violence); Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection,

62 DUKE L.J. 487, 516-19 (2012) (concluding that a preponderance of the evidence standard is appropriate under a Matthews v. Eldridge analysis).

68 CAL. EDUC. CODE § 67386(a)(3) (West 2014) (“A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.”).

69 U.S. DEP'T OF EDUC., OFFICE FOR CIVIL RIGHTS, QUESTIONS AND ANSWERS ON TITLE IX AND SEXUAL VIOLENCE (Apr. 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.

70 After the rape and murder of Jeanne Clery, a nineteen-year-old student at Lehigh University, Congress passed the Crime Awareness and Campus Security Act in 1990. Our History, CLERY CTR., http://clerycenter.org/our-history (last visited Nov. 2, 2015).

71 Student Right-to-Know and Campus Security Act, Pub. L. No. 101-542, 204 Stat. 2381 (1990) (codified as amended at 20 U.S.C. § 1092(f) (2012)), available at http://www.gpo.gov/fdsys/pkg/STATUTE-104/pdf/STATUTE-104- Pg2381.pdf.

72 See 20 U.S.C. § 1092(f)(8) (2012) (explaining that schools receiving federal funding are required to comply with the Clery Act); Summary of the Jeanne Clery Act, CLERY CTR., http://clerycenter.org/summary-jeanne-clery-act (last visited May 25, 2015) [hereinafter Clery Act Summary]. The Clery Act, however, does not require primary and secondary schools to disclose allegations of sexual assault.

73 Higher Education Amendments of 1992, Pub. L. No. 102-325, § 486(c)(2), 106 Stat. 448, 621-23 (1992).

74 Id.; The Clery Act in Detail , KNOWYOURIX.com, http://knowyourix.org/clery-act/the-clery-act-in-detail/ (last visited Mar. 29, 2015) (explaining the basic rights and report requirements included in the Act after the amendments). Among other things, under the Bill of Rights, schools must: (1) inform individuals reporting rape of their options to notify law enforcement, (2) notify the individual reporting sexual assault of available counseling services, and (3) give both the complainant and the accused the same opportunity to have others present at any proceedings. 20 U.S.C. § 1092(f)(8).

75 The Higher Education Amendments of 1998, Pub. L. No. 105-244, § 486(a), 112 Stat. 1581, 1745 (1998).

76 Clery Act Summary, supra note 72.

77 Id.

78 Id.

79 Id.

80 20 U.S.C. § 1092(f)(1)(F) (2012); see also Jennifer Steinhauer, White House to Press Colleges to Do More to Combat Rape, N.Y. TIMES (Apr. 28, 2014), http://www.nytimes.com/2014/04/29/us/tougher-battle-on-sex-assault- on-campus-urged.html (reporting that in 2013 The Department of Education fined Yale University $165,000 for failing to disclose four sexual offenses involving force, and Eastern Michigan University paid $350,000 in 2008 for failing to issue a campus alert after one of its students was sexually assaulted and killed).

81 20 U.S.C. §§ 1092(f)(1)(A), (f)(8).

82 20 U.S.C. § 1092(f)(4).

83 20 U.S.C. § 1092(f)(1)(F).

84 See Kristen Lombardi & Kristin Jones, Campus Sexual Assault Statistics Don't Add Up, CTR. FOR PUB. INTEGRITY (Dec. 2, 2009, 12:01 AM), http://www.publicintegrity.org/2009/12/02/9045/campus-sexual-assault-statistics-don-t- add.

85 See, e.g., 42 U.S.C. § 3796gg (2005) (Services, Training, Officers, and Prosecutors Grant Program or “STOP” Grants).

86 Nat'l Network to End Domestic Violence, The Violence Against Women Act of 2005: Summary of Provisions, NAT'L NETWORK TO END DOMESTIC VIOLENCE, http://nnedv.org/downloads/Policy/VAWA2005FactSheet.pdf (last visited Apr. 8, 2015).

87 Violence Against Women Reauthorization Act of 2013, 42 U.S.C. § 14045(b)(3) (2013).

88 See S. Daniel Carter, The Campus Sexual Violence Elimination Act, CLEARYACT.INFO, http://www.cleryact.info/ campus-save-act.html (last visited Oct. 27, 2015).

89 While the Clery Act requires annual reporting of statistics for various criminal offenses, a Campus SaVE Act provision adds domestic violence, dating violence, and stalking to the categories that, if the incident was reported to a campus security authority or local police agency, must be reported under Clery. 20 U.S.C. § 1092(f)(1)(F)(iiii) (2012). Thus, the Campus SaVE Act took effect with respect to the Annual Security Report that had to be issued by each institution no later than October 1, 2014.

90 Under VAWA, new students and new employees must be offered primary prevention and awareness programs that promote awareness of sexual misconduct, including rape and sexual assault. 20 U.S.C. § 1092(f)(8)(B)(i)(I). As a result, VAWA appears to be more prescriptive than the OCR “Dear Colleague” Letter in that the letter only recommended that institutions implement preventative education programs.

91 20 U.S.C. § 1092(f)(8)(C).

92 20 U.S.C. § 1092(f)(8)(A)(ii). The Clery Act required that institutions inform students of procedures victims should follow, e.g., to whom offenses should be reported, but the SaVE Act added that institutional policy must include information on (1) the victims' option to notify and seek assistance from law enforcement and campus authorities, and (2) victims' rights and institutional responsibilities regarding judicial no-contact, restraining, and protective orders. See 20 U.S.C. § 1092(f)(8)(B)(iii); see also S. Daniel Carter, Campus Sexual Assault Victims' Bill of Rights, http:// www.cleryact.info/campus-sexual-assault-victims--bill-of-rights.html (last visited Nov. 2, 2015); Lauren P. Schroeder, Comment, Cracks in the Ivory Tower: How the Campus Sexual Violence Elimination Act Can Protect Students From Sexual Assault, 45 LOY. U. CHI. L.J. 1195, 1227 (2014).

93 20 U.S.C. § 1092(f)(8)(B)(i)(I)-(II).

94 Carter, supra note 88.

95 U.S. Department of Education Announces Final Rule to Help Colleges Keep Campuses Safe, U.S. DEP'T OF EDUC. (Oct. 17, 2014), https://www.ed.gov/news/press-releases/us-department-education-announces-final-rule-help- colleges-keep-campuses-safe.

96 Violence Against Women Act, 79 Fed. Reg. 119 (June 20, 2014) (to be codified at 34 C.F.R. pt. 86), available at http:// www.gpo.gov/fdsys/pkg/FR-2014-06-20/pdf/2014-14384.pdf.

97 See Fact Sheet: Renewing the Call to End Rape and Sexual Assault, WHITE HOUSE, http://whitehouse.gov/sites/ default/files/docs/fact_sheet_sa_event.pdf (last visited Apr. 8, 2015) [hereinafter Fact Sheet].

98 Previous administrations have weighed in on aspects of the sexual assault epidemic; for example, in 1992, President George H.W. Bush signed the Federal Campus Sexual Assault Victim's Bills of Rights, which amended the Clery Act. The Federal Campus Sexual Assault Victims' Bill of Rights, CLERY CTR., http://clerycenter.org/federal-campus- sexual-assault-victims%E2%C80%99-bill-rights (last visited Mar. 27, 2015).

99 See Fact Sheet, supra note 97.

100 Fact Sheet: Launch of the “It's On Us” Public Awareness Campaign to Help Prevent Campus Sexual Assault, WHITE HOUSE (Sept. 19, 2014), https://www.whitehouse.gov/the-press-office/2014/09/19/fact-sheet-launch-it-s-us-public- awareness-campaign-help-prevent-campus- [hereinafter Press Release]

101 IT'S ON US, http://itsonus.org/ (last visited Apr. 2, 2015); Tanya Somanader, President Obama Launches the “It's On Us” Campaign to End Sexual Assault on Campus, WHITE HOUSE BLOG (Sept. 19, 2014, 2:40 PM), https:// www.whitehouse.gov/blog/2014/09/19/president-obama-launches-its-us-campaign-end-sexual-assault-campus.

102 See Fact Sheet, supra note 97.

103 Id.

104 Walbert Castilo, Daniel Funke & Megan Raposa, Don't Worry, Colleges and Universities Say ‘It's On Us,’ USA TODAY. (Feb. 19, 2015, 1:13 PM), http://college.usatoday.com/2015/02/19/dont-worry-colleges-and-universities- say-its-on-us/ (reporting that the Illinois Student Senate and the Women's Resources Center at the University of Illinois at Urbana-Champaign hosted its first It's On Us Twitter town hall event in February 2015 and reporting that in November 2014, the University of Georgia's SGA hosted It's On Us week, which featured events such as self-defense classes and a resource fair); Samantha Biastre, White House-led Initiative Comes to KU, THE KEYSTONE NEWS (Feb. 25, 2015), http://thekeystonenews.com/2015/02/25/white-house-led-initiative-comes-to- ku/ (reporting that KU implemented the White House It's On Us initiative to create awareness on the issue of campus sexual violence); “It's On Us” Action Week Targets Sexual Assault Awareness, MSU TODAY (Nov. 12, 2014), http://msutoday.msu.edu/news/2014/its-on-us-action-week-targets-sexual-assault-awareness/ (reporting that students at Michigan State University and other students around the country raised awareness of sexual assault as part of the national It's On Us Week of Action, which occurred November 17-21, 2014).

105 See Press Release, supra note 100.

106 1 Is 2 Many , WHITE HOUSE, https://www.whitehouse.gov/1is2many (last visited Sept. 13, 2015) [hereinafter PSA].

107 Gael Fashingbauer Cooper, Biden, Obama Join Hollywood Stars in Anti-Rape PSA, TODAY (Apr. 30, 2014, 10:00 AM), http://www.today.com/entertainment/biden-obama-join-hollywood-statts-anti- rap-psa-2D79601776; Amanda Hess, Daniel Craig, Seth Meyers and Steve Carell Would Like You to End Rape, Please, SLATE (Apr. 30, 2014, 11:16 AM), http://www.slate.com/blogs/ xx_factor/2014/04/30/obama_anti_rape_psa_daniel_craig_steve_carell_seth_meyers_and_benicio_del.html. Paula Mejia, Obama Administration Launches Celebrity-Studded Campaign to End Campus Sexual Assault, NEWSWEEK (Sept. 19, 2014, 3:08 PM), http://www.newsweek.com/obama-campaign-launches-celebrity-studded-campaign-end- sexual-assault-271829 (reporting that notable public figures who appeared in a video on the campaign's website, itsonus.org, include Scandal's Kerry Washington, Mad Men's Jon Hamm, and musician Questlove, among others).

108 PSA, supra note 106.

109 Id.; see also Michael Winerip, Stepping Up to Stop Sexual Assault, N.Y. TIMES (Feb. 7, 2014), http:// www.nytimes.com/2014/02/09/education/edlife/stepping-up-to-stop-sexual-assault.html (reporting on bystander intervention to help prevent sexual violence on campuses). But see Dana Bolger, It's On Us to Go Beyond ‘It's On Us,’ FEMINISTING (last visited Sept. 22, 2014), http://feministing.com/2014/09/22/its-on-us-to-go-beyond-its-on- us/ (criticizing the bystander intervention and contending that the new campaign de-politicizes and de-genders sexual assault, portraying it as an easy-to-avoid problem solely between individuals and making perpetrators out to be vague “someones” who do “something” to other “someones”).

110 Nancy Cohen, Training Men and Women on Campus to ‘Speak Up’ to Prevent Rape, NPR (Apr. 30, 2014, 3:31 AM), http://www.npr.org/2014/04/30/308058438/training-men-and-women-on-campus-to-speak-up-to-prevent-rape.

111 See supra note 69.

112 Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault, NOTALONE.gov 2 (Apr. 2014), https://www.notalone.gov/assets/report.pdf [hereinafter Not Alone Report]; Nick Anderson & Katie Zezima, White House Issues Report on Steps to Prevent Sexual Assaults on College Campuses, WASH. POST (Apr. 29, 2014), https://www.washingtonpost.com/local/education/white-house-issues-report-on-steps- to-prevent-sexual-assault-at-college-campuses/2014/04/28/0ebf1e22-cf1f-11e3-b812-0c92213941f4_story.html.

113 The Task Force launched a dedicated website, notalone.gov, to make enforcement data public and to make resources accessible to students and higher education institutions. In addition, the American College Health Association (“ACHA”) developed a “Shifting the Paradigm: Primary Prevention of Sexual Violence” toolkit to provide resources about the prevention of sexual violence. Shifting the Paradigm: Primary Prevention of Sexual Violence, AM. COLL. HEATH ASSOC. 1 (2008), http://www.acha.org/sexualviolence/docs/ACHA_PSV_toolkit.pdf. The emphasis of this toolkit is “to encourage prevention activities that take place before sexual violence has occurred and which create social change and shift the norms regarding sexual violence.” Id. at 3.

114 See Not Alone Report, supra note 112.

115 See Press Release, supra note 100.

116 Not Alone Report, supra note 112, at 2, 10.

117 Checklist for Campus Sexual Misconduct Policies, NOTALONE.gov, 1, 4 (2008), https://www.notalone.gov/assets/ checklist-for-campus-sexual-misconduct-policies.pdf.

118 Id. at 4-5.

119 S. 2692, 113th Cong. (2014); Senator Claire McCaskill, The Bipartisan Campus Accountability and Safety Act, MCCASKILL.SENATE.gov (July 30, 2014), http://www.mccaskill.senate.gov/imo/media/doc/ CampusAccountabilityAndSafetyAct.pdf (addressing the standards of conduct and definitions of rape and sexual assault); Jennifer Steinhauer, Senators Offer Bill to Curb Campus Sexual Assault, N.Y. TIMES (July 30, 2014), http:// www.nytimes.com/2014/07/31/us/college-sexual-assault-bill-in-senate.html?_r=0; Lombardi, supra note 6, at 2.

120 S. 590, 114th Cong. (2015).

121 See Expanded Bipartisan Coalition Introduces Legislation to Prevent Sexual Assaults on College and University Campuses, Protect Students & Create Real Accountability, GILlibrand.senate.gov (Feb. 26, 2015), http://www.gillibrand.senate.gov/newsroom/press/release/expanded-bipartisan-coalition-introduces- legislation-to-prevent-sexual-assaults-on-college-and-university-campuses-protect-students-and-create-real- accountability-; see also Mary Beth Marklein, Bill Aims to Crack Down on Campus Sexual Assault, USA TODAY (July 30, 2014, 8:56 PM), http://www.usatoday.com/story/news/nation/2014/07/30/sexual-assault-campus-mccaskill- colleges-universities/13328939/ (discussing “a survey of a national sample of 236 colleges and universities that found that 41% had conducted no investigations of alleged sexual assaults over the past five years, even though some of the schools had reported sexual violence incidents during that time to the Department of Education”).

122 See S. 590, supra note 120, at 8-12, 20-29.

123 See generally S. 590, supra note 120 (requiring schools to publish statistics on their websites).

124 See id. at 2, 12-13. Non-compliance with certain requirements may result in a penalty of up to one percent of the institution's operating budget. Further, penalties for Clery Act violations would increase from $35,000 per violation to $150,000. Id. at 12, 14-15.

125 Checklist for Campus Sexual Misconduct Policies, supra note 117, at 4.

126 Id. at 4-5.

127 Jake New, The “Yes Means Yes” World, SLATE (Oct. 17, 2014, 2:06 PM), http://www.slate.com/articles/life/ inside_higher_ed/2014/10/ affirmative_consent_what_will_yes_means_yes_mean_for_sex_on_college_campuses.html; see also Tara Culp- Ressler, The Growing Revolution To Change The Way We Approach Sex, THINKPROGRESS (Oct. 10, 2014, 1:09 PM), http://thinkprogress.org/health/2014/10/10/3578502/yes-means-yes-consent/ (stating that an essay collection entitled “Yes Means Yes” in 2008 helped to popularize the notion of affirmative consent); JESSICA VALENTI & JACLYN FRIEDMAN, YES MEANS YES: VISIONS OF FEMALE SEXUAL POWER & A WORLD WITHOUT RAPE (Perseus 2008).

128 New, supra note 127.

129 Id. Questions could be, for example, “What did she do to express that she wanted to have sex with you?” or “Did she agree to everything you two did?”

130 Martha Kempner, Teaching About Affirmative Consent in High School Is A Good Place to Start, RH REALITY CHECK (Mar. 24, 2015, 10:12 AM) http://rhrealitycheck.org/article/2015/03/24/teaching-affirmative-consent-high- school-good-place-start/ (explaining that the affirmative consent standard admittedly will not prevent all sexually violent scenarios from occurring, e.g., stranger rape, sexual assault that occurs after a person says no, and sexual assault that occurs because a person is too afraid to refuse or is coerced into saying yes); see also Jessica Valenti, ‘Yes Means Yes' Laws Will Not Actually Reclassify All Sex at Universities as Rape, THE GUARDIAN (Oct. 7, 2014), http://www.theguardian.com/commentisfree/2014/oct/07/yes-means-yes-sex-rape-universities; Kempner, supra note 130 (“Rape culture is deeply ingrained in our society, and many acts of sexual assault are not about sex at all but about violence.”).

131 See Deborah Tuerkheimer, Rape One and Off Campus, 65 EMORY. L.J. 1 (2015) (discussing the disconnect between cultural norms around sex and the legal definition of rape and concluding that the criminal justice system's treatment of a non-stranger statutory force requirement, which is relied on in a majority of jurisdictions, is out of step with the ongoing efforts by universities, legislators, and the White House to reform the standard for sexual assault); Richard Klein, An Analysis of Thirty-five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 AKRON L. REV. 981, 1004-11 (2008) (explaining that any consideration of an affirmative consent standard must analyze the dynamic between that doctrine and the concept of mens rea for the commission of the crime of rape, which is a fundamental aspect of the criminal justice system); Michal Buchhandler-Raphael, The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power, 18 MICH. J. GENDER & L. 147, 156-58 (discussing how rape law reform to a consent- based standard has failed because most jurisdictions still do not criminalize nonconsensual sex as rape, as they require the need to establish the complainant's lack of consent as well as the defendant's use of force or threat); Stephen Schulhofer, Rape in the Twilight Zone: When Sex is Unwanted but not Illegal, 38 SUFFOLK U. L. REV. 415, 420 (2005) (explaining that in most states the force or threat requirement means that it is not necessarily illegal to have a sexual encounter without consent).

132 Rape Addendum, FBI, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/rape- addendum/rape_addendum_final (last visited Nov. 22, 2015) (defining sexual assault as “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”) (emphasis added).

133 See, e.g., CAL. PENAL CODE § 261.2 (West 2013) (defining consent as “positive cooperation in act or attitude pursuant to an exercise of free will”); IOWA CODE ANN. § 709.1 (2010) (stating that the elements “by force” and “against the will” are alternative rather than cumulative requirements); WASH. REV. CODE ANN. § 9A.44.010(7) (West 2015) (defining consent as “actual words or conduct indicating [a] freely given agreement to have sexual intercourse”); WIS. STAT. ANN. § 940.225(4) (West 2013) (defining consent as “words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact”); see also Donald Dripps, After Rape Law: Will the Turn to Consent Normalize the Prosecution of Sexual Assault?, 41 AKRON L. REV. 957, 977-79 (2008) (suggesting that there be lower degrees of sexual assault offenses that have very small penalties).

134 See “DEAR COLLEAGUE” LETTER, supra note 57, at 5.

135 Antioch College is a small liberal arts college in Ohio. ANTIOCH COLLEGE, http://antiochcollege.org/ (last visited March 13, 2015).

136 Arun Rath & Kristine Herman, The History Behind Sexual Consent Policies, NPR (Oct. 5, 2014), http:// www.npr.org/2014/10/05/353922015/the-history-behind-sexual-consent-policies.

137 Sexual Offense Prevention Policy (SOPP) & Title IX, ANTIOCH COLL., http://antiochcollege.org/campus-life/ residence-life/health-safety/sexual-offense-prevention-policy (last visited Apr. 4, 2015).

138 Tara Culp-Ressler, The First College to Use Affirmative Consent was a Laughingstock. Now the Tide is Turning, THINKPROGRESS (Oct. 30, 2014, 2:41 PM), http://thinkprogress.org/health/2014/10/30/3586548/antioch- affirmative-consent/.

139 SNL, Is It Date Rape?, N.Y. MAG. VIDEOS, available at http://videos.nymag.com/video/SNL-Is-It-Date- Rape#c=BB9NHV149LVRFTHZ&t=SNL (last visited Apr. 10, 2015) (explaining that the sketch was a parody game show that involved participants acting out scenarios found in the school's sexual offense policy).

140 Amanda Hess, How Drunk Is Too Drunk to Have Sex?, SLATE (Feb. 11, 2015), http://www.slate.com/articles/ double_x/doublex/2015/02/ drunk_sex_on_campus_universities_are_struggling_to_determine_when_intoxicated.html (“There is an ambiguous middle ground between clear-eyed sober and passed-out drunk where one or both parties may become too intoxicated to meaningfully consent to sex... it's simply not always clear when it's OK to have sex with people when you, or they, or both of you have been drinking.”); James Taranto, Drunkenness and Double Standards, WALL ST. J. (Feb. 10, 2014), http://www.wsj.com/articles/SB10001424052702304558804579374844067975 (stating that sexual violence on college campuses is in part a problem of reckless alcohol consumption, and when two drunk college students have a sexual encounter, the male is almost always presumed to be at fault).

141 The National Center for Higher Education Risk Management is an organization that advises colleges on campus health and safety issues. THE NCHERM GROUP, LLC,https://www.ncherm.org/ (last visited Mar. 23, 2015).

142 Tyler Kingkade, Colleges Are Rewriting What Consent Means to Address Sexual Assault, HUFFINGTON POST (Sept. 1, 2014, 12:59 PM), http://www.huffingtonpost.com/2014/09/08/college-consent-sexual-assault_n_5748218.html (reporting that over 800 colleges and universities have adopted an affirmative consent policy). In this regard, every Ivy League university, except Harvard University, has adopted an affirmative consent policy. See Matt Rocheleau, Harvard Overhauls Handling of Sexual Assault Reports, BOSTON GLOBE (July 2, 2014), https://www.bostonglobe.com/metro/2014/07/02/harvard-overhaul-way-handles-sexual- assault-reports/f9vQgdGeHTeg3vByODQ7jO/story.html (reporting that Harvard's new rules governing sexual assault do not include an affirmative consent standard). The university amended its sexual misconduct policy in July 2014, but it did not broaden the definition of consent, as the policy merely calls sexual misconduct “unwelcome conduct of sexual nature.” Id.; see also New, supra note 127 (reporting that twenty-eight current and former Harvard law professors said the policy could deny accused students of their due process rights because the policy is too broad and vague).

143 New, supra note 127 (“According to the National Center for Higher Education Risk Management, more than 800 colleges and universities now use some type of affirmative consent definition in their sexual assault policies.”).

144 See CONSENT IS SEXY, http://www.consentissexy.net/(last visited Mar. 18, 2015) (referring to the “Consent is Sexy” campaign that has been launched in various places around the world and explaining why asking for consent is not a mood killer, in order to show that social media campaigns are one type of social norm campaigns being used by the majority of college campuses).

145 See Bystander-Focused Prevention of Sexual Violence, NOTALONE.gov 1 (2008), https://www.notalone.gov/assets/ bystander-summary.pdf (explaining that Green Dot and Bringing in the Bystander are two commonly used bystander programs on college campuses). Keith Hautala, ‘Green Dot’ Effective at Reducing Sexual Violence, UK NOW (Sept. 9, 2014), http://uknow.uky.edu/print/38383 (“[A study at the University of Kentucky's Center for Research on Violence Against Women] found a greater than 50 percent reduction in the self-reported frequency of sexual violence perpetration by students at schools that received the Green Dot training... [and] also found a 40 percent reduction in a self-reported frequency of total violence perpetration.”).

146 See Grant Programs, OFFICE OF VIOLENCE AGAINST WOMEN, U.S. DEP'T OF JUSTICE (Apr. 8, 2015), http:// www.justice.gov/ovw/grant-programs (referring to the Department of Justice's Office on Violence Against Women (OVW) as one source of funding for campus prevention programming, having funded approximately 388 projects addressing domestic violence, dating violence, sexual assault, and stalking on college campuses since 1999, resulting in a contribution of more than $139 million)

147 Richard Pérez-Peña & Kate Taylor, Fight Against Sexual Assault Holds Colleges to Account, N.Y. TIMES (May 3, 2014) (reporting that a Columbia University student agreed that the school's former effort to educate students about affirmative consent in a fifty-minute session during freshman orientation was inadequate, and that the school planned to increase the consent education program to two hours and to add additional sessions throughout the year).

148 See, e.g., Emanuella Grinberg, Schools Preach ‘Enthusiastic’ Yes in Sex Consent Education, CNN (Sept. 29, 2014, 5:40 PM), http://www.cnn.com/2014/09/03/living/affirmative-consent-school-policy/ (reporting that during one of the mandatory orientation sessions, freshmen at the University of California-Berkeley watch a 90-minute “Bear Pact” video, which covers the definition of sexual consent through three pillars: “knowing exactly what and how much I'm agreeing to; expressing my intent to participate deciding freely and voluntarily to participate,” and some students would like to see consent education continue beyond orientation and into classrooms and academic curricula because one session is not sufficient to educate students); NIU Releases Violence Against Women Act Task Force Report, NIU TODAY (Dec. 3, 2014), http://www.niutoday.info/2014/12/03/niu-releases-violence-against- women-act-task-force-report/ (reporting that the Northern Illinois University Presidential Task Force on Violence Against Women Act recommended a prevention initiative to include VAWA-specific education included in a two- day orientation for students, student completion of online education modules, and inclusion of primary prevention, bystander intervention, and awareness programming in courses for student and new employee orientation); see also Linda A. Anderson & Susan C. Whiston, Sexual Assault Education Programs: A Meta-Analytic Examination of Their Effectiveness, 29 PSYCHOL. WOMEN Q. 374, 385 (2005) (finding that longer interventions are more effective than brief interventions in altering both rape attitudes and rape-related attitudes and suggesting that the content of the programming, type of presenter, gender of the audience, and type of audience may be associated with great program effectiveness); Abby Young-Powell, Do Students Need Classes on Sexual Consent?, THE GUARDIAN (June 5, 2014), http://www.theguardian.com/education/2014/jun/05/sexual-consent-classes-for-university-students (reporting that Cambridge University is considering making hour long sexual consent classes compulsory for both male and female students, in response to “swelling reports” of campus sexual violence and misogyny).

149 See AFFIRMATIVE CONSENT, http://www.affirmativeconsent.com (last visited Mar. 29, 2015) (reporting that Greek organizations around the nation are developing awareness and prevention programming); see also Emilee Danielson-Burke & Stephanie Erdice, Anaconda: I Don't Want None Unless You Got Consent Hun - Creating a Culture of Consent Enthusiasts, AFA ESSENTIALS 1 (2014), http://c.ymcdn.com/sites/www.afa1976.org/resource/collection/2E1016C2-80B5-49E2- B9BA-8C81C4C94FCD/Danielson_Erdice_October_2014_COLLABORATOR.pdf (explaining that to create a “culture of consent enthusiasts,” consent education in the Greek community should be detailed and consistent); Schroeder, supra note 92, at 1238 (explaining that gender-specific programming may help because mixed-gender programs have shown uneven results in changing attitudes toward sexual assault).

150 Schroeder, supra note 92, at 1238.

151 Valenti,supranote 130 (explaining that although some commentators may have reservations about codifying affirmative consent into law, sexual communication has been codified into law through the current “no means no” model in the criminal justice system).

152 The affirmative consent standard had actually been a part of many California college campus sexual misconduct policies even prior to enactment of this legislation. See Christine Helwick, Affirmative Consent, the New Standard, INSIDE HIGHER ED (Oct. 23, 2014), https://www.insidehighered.com/views/2014/10/23/campuses-must-wrestle- affirmative-consent-standard-sexual-assault-essay (“Both the University of California and the California State University already had affirmative consent policies in place by the time the new law was passed.”).

153 CAL. EDUC. CODE § 67386(a) (West 2014). In addition to setting forth the affirmative consent standard, the law requires “the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or collaborative partnerships with on-campus and community-based organization to refer students for assistance or make services available to them.” Id. § 67386(c).

154 Id. § 67386(a).

155 Senate Bill 967 bill initially included language that “relying solely on nonverbal communication can lead to misunderstanding.” S.B. 967, 2013-14 Leg., Reg. Sess. (Ca. 2014) (introduced version), available at https:// leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967.

156 CAL. EDUC. CODE § 67386(a)(1).

157 Id. (“It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent.”)

158 Id.

159 Id. § 67386(a)(2)(A).

160 Id. § 67386(a)(2)(B).

161 See Jenny Kutner, Yes to ‘Yes Means Yes': California's Affirmative Consent Law Is the First Step to Eradicating Campus Sexual Assault, SALON (Sept. 29, 2014, 3:21 PM), http://www.salon.com/2014/09/29/ yes_to_yes_means_yes_californias_affirmative_consent_law_is_the_first_step_to_eradicating_campus_sexual_assault/ (opining that the “law represents a groundbreaking change in state legislatures, which could increasingly come to be the entities that hold institutions of higher education accountable for their prevalent mishandling of sexual assault investigations”). Moreover, feminist writers support the affirmative consent standards. Amanda Hess, “No Means No” Isn't Enough: We Need Affirmative Consent Laws to Curb Sexual Assault, SLATE (June 16, 2014, 2:13 PM), http://www.slate.com/blogs/xx_factor/2014/06/16/ affirmative_consent_california_weighs_a_bill_that_would_move_the_sexual.html (explaining how the law improves on the old “no means no” model); see also Nicholas J. Little, Note, From No Means No to Only Yes Means Yes: The Rational Results of An Affirmative Consent Standard in Rape Law, 58 VAND. L. REV. 1321, 1324 (2005) (“The introduction of an affirmative consent standard would not only incentivize rational behavior on the part of both women and men in dating situations but that such a shift in the law would potentially shift public perceptions of women and their role in sexual relationships.”).

162 See Editorial, Sex and College Students: Should the Legislature Be in the Mix Too?, L.A. TIMES (May 28, 2014, 4:25 PM), http://www.latimes.com/opinion/editorials/la-ed-affirmative-consent-20140525-story.html (arguing that the government should not be telling people what they must do when it comes to sex); Matt Pearce, California's ‘Yes Means Yes' Sexual Standard Has Liberals Divided, L.A. TIMES (Oct. 26, 2014, 9:11 PM), http://www.latimes.com/local/ california/la-me-10-27-what-they-are-saying-20141027-story.html (“Consider it a clash between those who believe the law is too instructive and those who believe intrusiveness is the entire point.”).

163 See Tad Cronn, California Proposes a License to Breed, POLITICAL OUTCAST (June 5, 2014), http:// politicaloutcast.com/2014/06/california-proposes-license-breed/ (criticizing the California bill on the basis that affirmative consent rules will detract from the spontaneity of sexual encounters); Cathy Young, California's Absurd Intervention Over Dorm Room Sex, REASON.com (June 22, 2014), http://reason.com/archives/2014/06/22/ californias-absurd-intervention-over-dor (arguing that it would be difficult for anyone to feel sexy when applying the affirmative consent requirement); Shikha Dalmia, California's Sexual Consent Law Will Ruin Good Sex for Women, REASON.com (Oct. 7, 2014), http://reason.com/archives/2014/10/07/ruining-sex-in-california (reasoning that “[t] he obvious problem with the law... is that it assumes that sexual assault, already a crime under multiple laws, is the result of miscommunication... [b]ut the fact is: Most assaulters know exactly what they are doing”).

164 See Emma Wolf, Does California College Rape Bill Go Too Far in Regulating Sex?, DAILY BEAST (June 23, 2014), http://www.thedailybeast.com/articles/2014/06/23/does-california-s-college-rape-bill-go-too-far-in-regulating- sex.html (questioning whether person can interpret “affirmative consent” signals during stages of a sexual encounter); Steven Nelson, California ‘Yes Means Yes' Law Worries Skeptics, U.S. NEWS (Sept. 29, 2014, 5:54 PM), http://www.usnews.com/news/articles/2014/09/29/california-yes-means-yes-law-worries-skeptics (reporting a concern because the law does not specify how nonverbal consent could be communicated and that the consent requirement could apply to kissing or other behaviors legislators did not have in mind); Cathy Young, Campus Rape:

The Problem with ‘Yes Means Yes,’ TIME (Aug. 29, 2014) (arguing the bill is unlikely to deter sexual violence on campuses and “its effect will be to codify vague and capricious rules governing student conduct, to shift the burden of proof to (usually male) students accused of sexual offenses; and to create a disturbing precedent for government regulation of consensual sex”; and “nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions” and therefore, they are likely to treat only verbal consent as sufficient proof of affirmative consent).

165 See Ashe Schow, ‘Yes Means Yes' Laws Also Hurt Women, WASH. EXAM'R (Oct. 16, 2014, 10:33 AM), http:// www.washingtonexaminer.com/yes-means-yes-laws-also-hurt-women/article/2554871 (“Proponents of the law, such as Vox's Ezra Klein, note that it is simply a rare scenario for an innocent man to be falsely accused, but believe such cases are ‘necessary’ for the law to ultimately work.”); Ezra Klein, ‘Yes Means Yes' is a Terrible Law, and I Completely Support It, VOX (Oct. 13, 2014, 10:30 AM), http://www.vox.com/2014/10/13/6966847/yes-means-yes-is-a-terrible- bill-and-i-completely-support-it (“The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.”).

166 See Emily Yoffe, The College Rape Overcorrection, SLATE (Dec. 7, 2014, 11:53 PM), http://www.slate.com/articles/double_x/doublex/2014/12/ college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html (positing that the efforts to protect women from sexual violence on college campuses have led to misguided policies that infringe on male students' civil rights and concluding that affirmative consent policies should be struck); Calvin Wolf, Op-Ed, Why California's ‘Yes Means Yes' Law Is a No-No, DIGITAL J. (Aug. 29, 2014), http://www.digitaljournal.com/news/politics/op-ed- why-california-s-yes-means-yes-law-is-a-no-no/article/400252 (“‘Yes means yes' swings the pendulum too far against young men and subjects them to excessive liability in stereotypical college hookups.”).

167 See supra note 162.

168 See Culp-Ressler, supra note 127.

169 See New, supra note 127.

170 CAL. EDUC. CODE § 67386(d) (West 2014).

171 Id. § 67386(d)-(e).

172 Amanda Marcotte, Andrew Cuomo Proposes Affirmative Consent for New York Universities, SLATE (Jan. 19, 2015, 9:11 PM), http://www.slate.com/blogs/xx_factor/2015/01/19/ affirmative_consent_in_new_york_gov_andrew_cuomo_proposes_legislation.html.

173 See S.B. 5965, 2015-2016 Leg., Reg. Sess. (N.Y. 2015), available at http://open.nysenate.gov/legislation/bill/ S5965-2015.

174 Some cities have even taken steps to require an affirmative consent standard. For example, Mayor Emanuel in Chicago, Illinois, previously announced an initiative to codify affirmative consent standards in city schools, although the ordinance ultimately failed to pass. Chicago, Ill., Ordinance to Amend Municipal Code Chapters 2-120 and 2-160 Regarding Sexual Assault Victims' Bill of Rights (Oct. 8, 2014), available at https://chicago.legistar.com/LegislationDetail.aspx?ID=1939413&GUID=DCC537F5-5DBC-405A- B1B0-3DFD10EA67B5&Options=Advanced&Search=; Rachel Comidas, Mayor Proposes ‘Bill of Rights' For College Sex Assault Victims, REDEYE (Oct. 9, 2014, 2:33 PM), http://www.redeyechicago.com/news/local/redeye-ordinance- would-be-college-sex-assault-bill-of-rights-20141009-story.html (reporting that the city's proposed Bill of Rights would codify an affirmative consent model for local colleges); Councilwoman: ‘Yes Means Yes' for Philly Colleges, CBS PHILLY (Dec. 11 2014, 3:08 PM), http://philadelphia.cbslocal.com/2014/12/11/councilwoman-yes-means-yes- for-philly-colleges/ (reporting that Councilwoman Blondell Reynolds Brown wants the city's colleges to adopt a “yes means yes” affirmative consent standard).

175 H.B. 2474, 52nd Leg., Reg. Sess. (Ariz. 2015); see also Ashe Schow, ‘Yes Means Yes' Law Could be Coming to Arizona, WASH. EXAM'R (Jan. 22, 2015, 12:59 PM), http://www.washingtonexaminer.com/yes-means-yes-law- could-be-coming-to-arizona/article/2559096.

176 S.B. 636, 2015 Leg., Reg. Sess. (Conn. 2015) (establishing affirmative consent as the threshold in sexual assault and intimate partner violence cases); see also “Yes Means Yes” Bill Proposed for State's Colleges, WTNH.com (Feb. 3, 2015, 11:59 AM ), http://wtnh.com/2015/02/03/yes-means-yes-bill-proposed-for-states-colleges/; Stephanie Addenbrooke & Noah Daponte-Smith, Legislators Push Affirmative Consent Policy, YALE DAILY NEWS (Feb. 4, 2015), http://yaledailynews.com/blog/2015/02/04/legislators-push-affirmative-consent-policy/.

177 H.B. 451, 28th Leg., Reg. Sess. (Haw. 2015) (requiring the University of Hawaii to establish and enforce an affirmative consent standard for all policies and protocols relating to sexual assault, domestic violence, dating violence, and stalking as a condition of receiving state funds). Although H.B. 451 is still pending, the recent passage of another bill, S.B. 387, showed some progress on Hawaii's part with the affirmative consent movement. Senate Bill 387 “[e]stablishes an affirmative consent task force to review and made recommendations on the University of Hawaii's executive policy on domestic violence, sexual assault, and stalking.” S.B. 387, 28th Leg., Reg. Sess. (Haw. 2015).

178 S. File 79, 86th Gen. Assemb., Reg. Sess. (Iowa 2015); H. File 390, 86th Gen. Assemb., Reg. Sess. (Iowa 2015).

179 H.B. 2266, 2015-2016 Leg., Reg. Sess. (Kan. 2015).

180 H.B. 138, 2015 Leg., Reg. Sess. (Md. 2015); H.B. 667, 2015 Leg., Reg. Sess. (Md. 2015); H.B. 839, 2015 Leg., Reg. Sess. (Md. 2015).

181 H. File 1689, 89th Leg., Reg. Sess. (Minn. 2015).

182 H.B. 412, 98th Gen. Assemb., Reg. Sess. (Mo. 2015) (requiring the governing boards of institutions of higher education to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking in order to receive state funds for student aid).

183 S.B. 2478, 216th Leg., Reg. Sess. (N.J. 2015); Assemb. B. 3947, 216th Leg., Reg. Sess. (N.J. 2015); Zach Noble, New Jersey Could Be the Next State to Enforce a ‘Yes Means Yes' Sexual Consent Standard on Colleges, THE BLAZE (Nov. 23, 2014, 3:00 PM), http://www.theblaze.com/stories/2014/11/23/new-jersey-could-be-the-next-state- to-enforce-a-yes-means-yes-sexual-consent-standard-on-colleges/.

184 S.B. 474, 2015 Leg., Reg. Sess. (N.C. 2015).

185 H.B. 2690, 82nd Leg., Reg. Sess. (W. Va. 2015) (requiring state institutions of higher education and certain other postsecondary schools or training facilities to adopt policies and procedures relating to campus sexual violence, domestic violence, dating violence, and stalking).

186 See supra Part II.

187 While all high school students will not attend college, arguably all students should receive education on the affirmative consent standard as well as the jurisdiction's rape law.

188 While arguably age-appropriate education could begin before high school, this Article is limited to the discussion of requiring affirmative consent education during high school.

189 20 U.S.C. § 1681 (2012); see also Tierney Sneed, High Schools and Middle Schools Are Failing Victims of Sexual Assault, U.S. NEWS (Mar. 5, 2015, 12:01 AM), http://www.usnews.com/news/articles/2015/03/05/high-schools-and- middle-schools-are-failing-victims-of-sexual-assault (reporting that public primary and secondary schools are covered under Title IX, but many parents and even some school administrators are unaware that it applies.).

190 See Sneed, supra note 189 (reporting that the Department of Education's Office for Civil Rights has thirty-three sexual violence investigations open in thirty-two school districts); see also Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015) (reversing in part due to fact issues that precluded summary judgment on plaintiff's Title IX claim as well as three of

plaintiff's § 1983 equal protection claims). This case involves a fourteen-year-old girl who was raped by a fifteen-year- old boy in the bathroom staff at school; plaintiff alleges that the defendants did not properly respond to a long pattern of sexual harassment by a male student). Id. at 955-62.

191 Not Alone Report, supra note 112, at 20 (explaining the Task Force is working to identify how its recommendations apply to K-12 schools); see also Davis v. Monroe Cnty Bd. Of Educ., 526 U.S. 629, 649 (1999) (explaining that what constitutes a reasonable response in a primary or secondary school may not be the same as in a college setting).

192 Sneed, supra note 189 (reporting that unlike the college environment, mandatory reporting laws require K-12 teachers and administrators to report to police any sexual allegations).

193 See infra Part III.A.

194 See Quinn Cummings, The Most Game-Changing Part of the ‘Affirmative Consent’ Law, TIME (Oct. 1, 2014) (positing that the standard, “lack of protest or resistance does not mean consent, nor does silence mean consent,” should be a part of the conversation at the high school freshmen level); Kempner, supra note 130.

195 See infra Part III.B.

196 S.B. 695, 2015-2016 Leg., Reg. Sess. (Cal. 2015).

197 States that take an “abstinence only” approach to sex education can still address sexual assault and the affirmative consent standard in the context of health education, teen dating, personal responsibility programming, or other awareness and prevention programming. See infra Part III.B. Moreover, there is no evidence to date that abstinence-only-until-marriage education delays teen sexual activity. See Heather Boonstra, Sex Education: Another Big Step Forward--and a Step Back, THE GUTTMACHER POLICY REVIEW, 13(2):27-28 (2010), https:// www.guttmacher.org/pubs/gpr/13/2/gpr130227.html.

198 Paul R. Abramson & Leif Dautch, Op-Ed, Waiting Until College to Teach About Affirmative Consent Is Too Late, L.A. TIMES, (Nov. 23, 2014, 4:00 PM) (“With dating and sexual activity increasingly starting in junior high or high school, ameliorative measures at the college level might come years too late.”); see also Lisa T. McElroy, Sex on the Brain: Adolescent Psychosocial Science and Sanctions for Risky Sex, 34 N.Y.U. REV. L. & SOC. CHANGE 708, 716 (2011) (explaining that “sexual activity in adolescence has become normal behavior, and adolescents tend to make decisions about whether to engage in intercourse-at least first intercourse-based on their personal attitudes and peer norms regarding sex or abstinence”).

199 Laura Kann et al., Youth Risk Behavior Surveillance-- United States, 2013, 63 MMWR SURVEILLANCE STUDIES 1 (2014), http://www.cdc.gov/mmwr/pdf/ss/ss6304.pdf [hereinafter CDC Survey].

200 CDC Survey, supra note 199.

201 Tween and Teen Dating Violence and Abuse Study, TRU 1 (2008), available at http://www.loveisrespect.org/wp- content/uploads/2008/07/tru-tween-teen-study-feb-081.pdf.

202 Hostile Hallways: Bullying, Teasing, and Sexual Harassment in School, AAUW EDUC. FOUND. 1, 4 (2001), http:// history.aauw.org/files/2013/01/hostilehallways.pdf.

203 Catherine Hill & Holly Kearl, Crossing the Line: Sexual Harassment at School, AAUW 1, 2 (2011), http:// www.aauw.org/files/2013/02/Crossing-the-Line-Sexual-Harassment-at-School.pdf.

204 Kelsey Sheehy, Teen Sexual Assaults Highlight Need for Prevention Programs, U.S. News (Oct. 21, 2013, 8:00 AM), http://www.usnews.com/education/blogs/high-school-notes/2013/10/21/teen-sexual-assaults-highlight- need-for-prevention-programs; Michele L. Ybarra & Kimberly J. Mitchell, Prevalence Rates of Male and Female Sexual Violence Perpetrators in a National Sample of Adolescents, 167 JAMA PEDIATRICS 1125, 1127 (2013), available at http://archpedi.jamanetwork.com/article.aspx?articleid=1748355#Methods.

205 CDC Survey, supra note 199. And, while federally funded colleges are required to report sexual assault statistics under the Clery Act, there is no data collection requirement for high schools.

206 Sneed, supra note 189.

207 Sexual Violence: Facts at a Glance, CDC (2012), available at http://www.cdc.gov/violenceprevention/pdf/sv- datasheet-a.pdf.

208 Kevin Vagi et al., Teen Dating Violence (Physical and Sexual) Among U.S. High School Students: Findings From the 2013 National Youth Risk Behavior Survey, 169 JAMA Pediatrics 474 (May 2015), available at http:// archpedi.jamanetwork.com/article.aspx?articleid=2173573 (indicating that 20.9% of female students and 10.4% of males students reported experiencing some form of teen dating violence during the twelve months before the survey); see also Sheehy, supra note 204 (reporting that offenders started young, with most first committing an act of sexual violence at age sixteen).

209 Kempner, supra note 130.

210 Vagi, supra note 208.

211 Kempner, supra note 130.

212 Abramson & Dautch, supra note 198.

213 Cf. Sneed, supra note 189 (explaining that the primary and secondary education system is decentralized, meaning that preventative education measures and protocols vary state to state and school district by school district).

214 AVERT, http://www.avert.org/sex-education-works.htm (last visited Mar. 29, 2015).

215 State Policies on Sex Education in Schools, GUTTMACHER INSTITUTE 1 (2015), http://www.guttmacher.org/ statecenter/spibs/spib_SE.pdf [hereinafter State Policies]. The issue of sex education, however, is often a point of contention for conservatives, who continue to push for abstinence-only education, despite evidence that indicates its ineffectiveness. See Kohler et al., Abstinence-Only and Comprehensive Sex Education and the Initiation of Sexual Activity and Teen Pregnancy, 42 J. OF ADOLESCENT HEALTH 344, 344-351 (2008) (determining the impact of sexuality education on youth sexual risk-taking for young people ages fifteen to nineteen and finding that teens who received comprehensive sex education were fifty percent less likely to get pregnant than those who received abstinence- only education).

216 NPR, Kaiser Family Found. & Kennedy School of Gov't, Sex Education in America: General, NPR 1 (2004), http:// www.npr.org/programs/morning/features/2004/jan/kaiserpoll/publicfinal.pdf; Darryl L. Figueroa,Poll: Public Support for Sexuality Education Reaches Highest Level, COMMON DREAMS (June 2, 1999), http://www.commondreams.org/ pressreleases/june99/060299b.htm.

217 Thirty-five states and the District of Columbia allow parents to remove their children from sex education, HIV education, or both. State Policies, supra note 215, at 1.

218 STATE SCHOOL HEALTH POLICY DATABASE, http://www.nasbe.org/healthy_schools/hs/bytopics.php? topicid=1100 (last visited Apr. 6, 2015) (listing out health education mandates by state).

219 While the effectiveness of prevention strategies is outside the scope of this Article, effective “principles of prevention” programs tend to be comprehensive, appropriately timed in development, of sufficient dose, administered by well- trained staff, socio-culturally relevant, theory-driven, provide opportunities for positive relationships, and utilize varied teaching methods. Maury Nation et al., What Works in Prevention: Principles of Effective Prevention Programs, 58 AM. PSYCHOLOGIST, 449-56 (2003).

220 Teen Dating Violence, NCSL, http://www.ncsl.org/research/health/teen-dating-violence.aspx (lasted visited Nov. 3, 2015). E.g., DEL. CODE ANN. tit. 14 § 4112E (West 2014) (requiring school districts and charter schools to establish a policy on responding to teen dating violence and sexual assault and also requiring them to add comprehensive

programming on healthy relationships as part of the curriculum in health classes); GA. CODE ANN. § 20-2-314 (West 2015) (requiring the State Board of Education to develop rape prevention and personal safety education program and a program for preventing teen dating for grades eight through twelve); TENN. CODE ANN. § 49-1-220 (West 2014) (urging the Department of Education to develop sexual violence and teen dating awareness curriculum for presentation at least once in grades seven and eight and at least once, preferably twice, in grades nine through twelve, including rape prevention strategies).

221 The CDC recently completed a systematic review of 140 studies examining the effectiveness of primary prevention strategies for sexual violence perpetration, and only two programs have rigorous evidence of effectiveness for preventing sexual violence: Safe Dates and the building-level intervention of Shifting Boundaries. Sarah DeGue et al., A Systematic Review of Primary Prevention Strategies for Sexual Violence Perpetration, 19 AGGRESSION & VIOLENT BEH. 346, 346-62 (2014). Both were developed with middle/high school students, but may provide useful models for the development of college prevention strategies.

222 S.B. 695, 2015-2016 Leg., Reg. Sess. (Cal. 2015).

223 Lenin Silva, Senators Introduce Bill to Require Sexual Assault Education in High School, DAILY CALIFORNIAN (Mar. 5, 2015), http://www.dailycal.org/2015/03/05/senators-introduce-bill-require-sexual-assault-education-high- school/; Affirmative Consent Education for High School Students - Sexual Assault & Violence Prevention Legislation Announced, SD24.SENATE.CA.gov (Mar. 3, 2015), http://sd24.senate.ca.gov/news/2015-03-03-release-affirmative- consent-education-high-school-students-sexual-assault-violence (“[A college student] who testified in support of [the legislation] said, ‘Consent education in high school health classes is monumental because sexual violence doesn't start on college campuses, it's something that's socialized much earlier. The earlier you start consent education, the easier it will be to create a culture of consent and support, not just on our college campuses but in our larger communities. This legislation is a huge step in helping prevent sexual violence.”’)

224 California to Teach Affirmative Consent/Sexual Assault Prevention in High School, SD24.SENATE.CA.gov (Oct. 1, 2015), http://sd24.senate.ca.gov/news/2015-10-01-california-teach-affirmative-consentsexual-assault-prevention- high-school.

225 S.B. 695.

226 Id.

227 Id.

228 CAL. EDUC. CODE § 51225.36 (West 2016).

229 H.B. 4903, 2015 Leg., Reg. Sess. (Mich. 2015).

230 H.B. 1507, 55th Leg., Reg. Sess. (Okla. 2015), available at http://webserver1.lsb.state.ok.us/ cf_pdf/2015-16%20INT/hB/HB1507%20INT.pdf (authorizing school districts to provide programs for sexual violence awareness and prevention, which will include education about affirmative consent); H.R. 1037, 2015-2016 Reg. Sess. (N.Y. 2015), available at http://assembly.state.ny.us/leg/? default_fld=&bn=A01037&term=2015&Summary=Y&Actions=Y&Text=Y&Votes=Y (amending existing law to add prevention of sexual abuse and assault to health education in all public schools); S.B. 5506, 2015 Leg., Reg. Sess. (Wash. 2015) (adding information on sexual assault and violence prevention and understanding consent to existing health education requirement); see also H.B. 13-1081, 69th Gen. Assemb., Reg. Sess. (Colo. 2013), available at http:// tornado.state.co.us/gov_dir/leg_dir/olls/sl2013a/sl_303.htm (requiring human sexuality education programs to include instruction regarding the prevention of sexual violence in dating and teaching young people how to recognize and respond safely and effectively in situations where sexual violence may be occurring).

231 See, e.g., H.B. 406, 2015-2016 Leg., Reg. Sess. (Ga. 2015), available at http://www.legis.ga.gov/ Legislation/20152016/148509.pdf (providing age-appropriate education in kindergarten through twelfth grade on sexual abuse and assault awareness and prevention); H.B. 595, 28th Leg., Reg. Sess. (Haw. 2015), available at http:// www.capitol.hawaii.gov/session2015/bills/HB595_.pdf (amending existing sexuality health education law to specify

additional requirements for information that helps students form healthy relationships); H.B. 459, 28th Leg., Reg. Sess. (Haw. 2015); S.B. 61, 98th Gen. Assemb., Reg. Sess. (Mo. 2015), available at http://www.senate.mo.gov/15info/ BTS_Web/Bill.aspx?SessionType=R&BillID=54 (creating the Teen Dating Violence Prevention Education Act to provide students with information to prevent and respond to teen dating violence as part of sexual health and health education programs in seventh through twelfth grade).

232 Sneed, supra note 189; see also State Policies on Sex Education in Schools, NCSL (Feb. 13, 2015), http://www.ncsl.org/ research/health/state-policies-on-sex-education-in-schools.aspx.

233 S. 355, 114th Cong. (2015). Senator Kaine stated that “[w]ith the alarming statistics on the prevalence of sexual assault on college campuses and in communities across the county, secondary schools should play a role in promoting safe relationship behavior and teaching students about sexual assault and dating violence.” Tim Kaine, Claire McCaskill Bill Would Require Sexual Assault Education in Public High Schools, HUFFINGTON POST (Feb. 4, 2015, 12:59 PM), http://www.huffingtonpost.com/2015/02/03/sexual-assault-education-bill_n_6608354.html.

234 Id.

235 See supra Part II.

236 See supra Part III.A-B.

237 See supra Part III.A.

238 See supra Part III.B.

239 See supra Part III.A.

240 See supra Part IV.A-B. 50 USFLR 35

75 Md. L. Rev. 590

Maryland Law Review 2016

Symposium: 2015 Maryland Constitutional Law Schmooze Continued from Volume 75, Issue 1

EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT a1

Julie Novkov aa1

By the end of the College Bowl Series playoff game, Heisman-winning quarterback Jameis Winston was having a very bad day. His Florida State Seminoles had been trounced by the Oregon Ducks in a game featuring multiple miscues and turnovers by the offense and by Winston himself. At the end of the game, as Winston was leaving the field, a handful of jubilant Duck players initiated a taunt to the tune of the Seminoles' “tomahawk chop” chant: “No means no!” 1

The chant, which provoked delighted support, predictable outrage, charges of hypocrisy, and threats of punishment from the head coach, referred to a simmering allegation against Winston dating back to December 2012 that he had raped a fellow student. 2 On the night of December 6, Winston's accuser, a nineteen-year-old female freshman, allegedly shared at least five mixed drinks with him at a bar and departed in a taxi with three Florida State football players. She claimed that her memory then became hazy, but recalls returning to consciousness in an apartment where she was subjected to sexual assault after indicating her lack of consent. Her assailant then dressed her and returned her on his scooter to an intersection near her dormitory. She posted an online plea for help, and two friends intervened. One finally convinced her to contact the police and placed a 911 call on her behalf at 3:22 AM on the night of the alleged assault. Because she called from her dorm room, the call was routed to the campus police, and a campus police officer drove her to the hospital. At the hospital, she indicated her belief that the assault had taken place off campus, so the Tallahassee *591 City police interviewed her both at the hospital that night and the following morning when she returned to complete her statement. 3

Labeling the course of events afterward “the comedy of errors” would channel Shakespeare's darker side. 4 The Tallahassee police officer in charge of the investigation made no serious attempts to identify a man at the apartment whom the victim heard referred to as Chris (he later turned out to be Winston's roommate), nor did he request footage from the squadron of surveillance cameras scattered throughout the bar. 5 He made a lackadaisical call to the cab company to try to identify the driver of the cab that the woman had shared with the three football players, but failed to follow up. By the time he filed his first report--more than two months after the alleged assault-- memories had faded and evidence, including the videotapes in the bar, was irretrievably lost. The biggest break in the case came from the victim herself, who contacted the police on January 10 to inform them that she had discovered the name of her assailant after recognizing him in a class. The investigation limped along--at one point, Winston successfully evaded an interview with the police because he had to be at baseball practice. Ultimately, the investigation was suspended, allegedly because the victim did not cooperate with the police, despite the fact that she continued to contact the police to inquire about the progress of the investigation. 6

The following fall, however, the case reappeared when the Tampa Bay Times requested documents from the police under open records laws. 7 State prosecutor Willie Meggs opened an investigation of the case, and as she attempted to reconstruct a narrative of the night, the fall progressed toward winter and the Seminoles marched toward a national championship under Winston's leadership. Ultimately, Winston would win the Heisman trophy, the Seminoles would win the national title, and the prosecutor would decline to move forward with criminal charges, explaining in a press conference shortly before the Heisman selection that he simply did not have enough evidence to arbitrate between the accuser's claim that Winston assaulted her and Winston's response that they engaged in consensual sex. 8

Had the case not happened at a university and involved two students, it might merely be another exemplar of police misconduct regarding sexual assault, of the prevalence of rape culture, or of women's propensity to blame men for drunken sex, depending on one's political orientation. But the university was implicated, and had clearly been drawn in at a fairly early *592 point, as Tallahassee police records indicate that the athletic department had called the Tallahassee police regarding the allegations against their then-freshman hotshot quarterback in January of 2013. Under Title IX, the athletic department was obliged to inform school officials of the allegation; however, no one seems to know whether this obligation was fulfilled. Either way, Florida State did not open an investigation in January of 2013. Officials allegedly approached Winston's accuser in October of 2013 to ask if she wished them to investigate her allegations, but Florida State was, if anything, even less invested in the investigation than the police. 9 This lack of action ultimately prompted Winston's accuser to complain to the Department of Education's Office for Civil Rights about Florida State, triggering a Title IX investigation against the university. 10 Florida State's investigation led to a student conduct hearing for Winston, over which a former Florida Supreme Court Justice, Major Harding, presided, ultimately clearing Winston of any wrongdoing under a preponderance of the evidence standard. 11

The controversy over Winston illustrates much of what can go wrong in the aftermath of a sexual assault on campus - a claim of wrongdoing not adequately investigated, a police department considering the campus status of the accused, and concerns raised by both the complainant and the accused about due process and fairness. Accusations begin as private disputes between students, but if the victim of an assault seeks resolution on campus, the claim enters a maze of layered institutions that are accountable to protect the interests of complainants and accused, and also accountable to the campus community and federal law. Untangling the layers helps to explain why the issue is so controversial, but does not provide a clear path forward to handle such disputes.

In this Paper, I suggest thinking about assault accusations as community wrongs rather than individual wrongs, and I propose developing an approach that focuses on structures rather than on individual-level analysis of consent and intent. Cultural struggles over sexual assault and consent seem primed to continue. So, then, will the controversy over the proper handling of sexual assault cases, including concern over the proper framing and assignment of responsibility and the appropriate exercise of due process. The *593 shift to community and structural analysis, however, would be better suited than the current framework to navigate through the conflicts and discontinuities produced by the layering of frameworks of women's equality, the rights of the accused, and university accountability, as well as to protect the rights and interests of individual students. This new analysis also facilitates looking at structures and practices that make assault both more likely to occur and less subject to mitigation through ascribing individual accountability to offenders.

I. THE NEW WORLD OF SEXUAL ASSAULT POLICIES ON CAMPUS

Florida State's failure to proceed against Winston comes in the context of a national furor over a cultural clash. Sexual assault victims and their advocates have advocated strongly for reform in how colleges and universities

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 115 2 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 address private student-on-student crime, seeking to sweep these reforms directly into higher educational institutions' obligation to provide gender equity.

In 1972, President Nixon signed Title IX into law. 12 The law, a small part of the Higher Education Amendments of 1972, was deceptively short, stating simply: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 13 Its primary purpose was to encourage educational institutions to eliminate sex discrimination by denying the expenditure of federal funds that supported it. Like the major anti-discrimination measure covering employment, Title VII, Title IX provided individual citizens with remedies against violations. 14 The statute's bare language has led institutions to seek guidance on compliance from the Department of Education, which has implemented its general command for more than four decades. 15 When Title IX was passed, the fundamental issues it addressed included women's lack of access to higher education and large inequities in the resources provided to women in all levels of education and across multiple areas, including athletics.

*594 Individuals who believe that an institution has violated their right to freedom from discrimination may file a claim with the Office for Civil Rights (“OCR”) within 180 days of the event to seek resolution. 16 The OCR will then seek resolution, often encouraging settlements between institutions and aggrieved individuals. 17 The Department of Education and the OCR are thus the primary federal institutions involved in the administrative interpretation and implementation of Title IX's mandate. Aggrieved individuals may also opt to pursue independent private litigation directly under Title IX, but the standard for establishing a violation is more difficult to achieve. 18

In 1990 and 1992, Congress passed and amended the Crime Awareness and Campus Security Act, popularly known as the Clery Act, as a supplement to Title IX. This legislation explicitly required campuses to address sexual violence: “schools must inform individuals reporting rape of their options to notify law enforcement, grant both the accuser and accused the same opportunity to have others present at any proceedings, inform both parties of the outcome of any disciplinary proceeding, and notify the individual reporting rape of available counseling services and options to change academic and living situations.” 19 The Clery Act also mandates annual public reporting of crimes and official responses to them on campuses. 20 As with Title IX, implementation lies in the Department of Education, and students may bring allegations of violations directly to the Department of Education to seek resolution.

While Title IX and the Clery Act could be understood to work in conjunction to frame campus sexual assault as a remediable form of gender discrimination and provide access to remedies, some advocates for sexual assault victims argued that the two Acts were still insufficient. 21 Taken together, the two Acts provided for significant monetary penalties for non-compliance, but in the view of at least one commentator, could not effectively address countervailing pressures to maintain institutions' public images *595 and reputations. 22 Response to these concerns came in two forms: administrative guidance from the Department of Education in the form of a letter, and statutory reform both passed in Congress in 2013 and proposed for the future.

Advocates for reform achieved a significant victory with the Department of Education, convincing the OCR to produce a policy memorandum in 2011 that has transformed how higher educational institutions address allegations of sexual assault. 23 The “Letter to Colleagues” clarifies the OCR's interest in and intent to increase its enforcement efforts with regard to sexual violence, which it identified as a form of sex discrimination under Title IX. The letter defines sexual violence as “physical sexual acts perpetrated against a person's will or where

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 116 3 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 a person is incapable of giving consent due to the victim's use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability.” 24 The letter places responsibility on schools and colleges to take “immediate and effective steps to end sexual violence and sexual harassment.” 25 The letter makes it clear that campuses may not simply rely on their existing policies or cede responsibility for dealing with sexual violence to local law enforcement. Yet the letter also contemplates local law enforcement continuing to play a role, ideally in concert with campus authorities, though campus proceedings have different burdens of proof and procedural standards.

In addition to the changes initiated by the “Letter to Colleagues,” Congress enacted the Campus Sexual Violence Act (“CSVA”) in 2013 as Section 304 of the reauthorization of the Violence Against Women Act of 1994. 26 Senators Claire McCaskill (D-MO) and Kirsten Gillibrand (D-NY) cosponsored this legislation introduced by Senator Patrick Leahy (D-VT), which sought “to close the gap in current laws by requiring colleges and universities to clearly explain their policies on sexual assault, stalking, dating violence, and domestic violence.” 27 The provision, which updates reporting requirements contained in the Clery Act, operates by requiring higher educational institutions receiving federal funding to include in their *596 reports additional information about the prevalence of sexual violence on campus and detailed policies the campus has developed to address such violence. The policies must lay out educational programs promoting awareness about sexual violence and explain the procedures that the institutions will follow to address incidences of “domestic violence, dating violence, sexual assault, or stalking . . . including a statement of the standard of evidence that will be used during any institutional conduct proceeding arising from such a report.” 28

CSVA requires schools to inform victims about how to file a claim, but also to lay out the possibilities for pursuing remedies through the criminal justice system and to solicit their institutions' assistance in doing so. 29 It does not establish a prescribed evidentiary standard for adjudicating claims, but does require that policies identify a standard, and demands that both accused and accuser have the same rights to have advisors, including an attorney, accompany them in hearings. 30 Under any standard, there is substantial public and federal investment in determining how institutions address these individual private wrongs.

Finally, the measure lays the groundwork for continuing reform by requiring the Secretary of Education to “seek the advice and counsel of the Attorney General of the United States concerning the development, and dissemination to institutions of higher education, of best practices information about campus safety and emergency . . . [and] about preventing and responding to incidents of domestic violence, dating violence, sexual assault, and stalking.” 31

The 2011 OCR letter is only administrative policy and could easily be subject to reversal by the next presidential administration, especially if a Republican is elected, and CSVA does not completely codify these policies. 32 Senators Claire McCaskill (D-MO) and Kirsten Gillebrand (D-NY) are seeking further legislative reform through their Campus Accountability *597 and Safety Act (“CASA”). 33 CASA, if passed, would codify more of the changes introduced by the 2011 Letter and make it possible for OCR to fine institutions progressively rather than having only the all-or-nothing (and therefore almost never imposed) sanction of withholding federal funds. 34 In addition, CASA would require data sharing and coordination between institutions of higher education and local law enforcement officials in dealing with sexual violence, far more stringent provisions concerning the provision of information about victim services and other available resources, the establishment of uniform processes for handling such cases (including rapid written notice to both accuser and accused of outcomes in investigations), the conduct of biannual climate surveys with public releases of results, public identification of institutions under investigation for poor handling of assaults, and the adoption of uniform and standard systems for handling accusations (primarily intended to strip athletics departments of the ability to maintain jurisdiction over student

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 117 4 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 athletes accused of sexual assault). 35 The OCR also recently reminded institutions of their legal obligation under Title IX to hire or identify a full-time Title IX coordinator, who will be responsible for overseeing the implementation of and compliance with Title IX standards, including those regarding adjudication of sexual assault allegations. 36

While CSVA and other proposed legislative reforms are ambitious, its effectiveness will depend upon implementation, as Schroeder notes. 37 Moreover, while the hope behind the laws and regulations targeting sexual assault on campus is that institutions will prioritize working to eliminate sexual assault and other forms of sexual violence, institutions will necessarily and rationally privilege preventing liability from private suits pursued under these frameworks or loss of federal funding from administrative action *598 triggered by findings of non- compliance. The 2011 letter and recent implementation efforts (which include the adoption of affirmative consent standards) have produced controversy over how sexual assault allegations are handled in campus proceedings. Sexual assault is a criminal act, and perpetrators can be subjected to criminal sanctions by the state. A campus hearing for sexual assault, however, can proceed under a “preponderance of the evidence” standard, which is significantly weaker than the criminal “reasonable doubt” threshold. 38 A complainant in a campus hearing need only show that it is more likely than not that a perpetrator committed the alleged act in order for consequences to be imposed. 39 This triggers a whole host of due process concerns on the part of those accused of sexual violence. Longstanding doctrine has held that people have tangible interests in their ongoing educational opportunities, and therefore that they are entitled to due process before their opportunities are curtailed or cut off through internal investigative processes. 40 In these investigations, the state becomes involved in two ways: (1) any college or university accepting federal funding must comply with Title IX standards and practices articulated from the Office for Civil Rights, and (2) if the university involved is itself a state institution, then it acts as a public entity when it establishes and conducts hearing processes.

Nationally, colleges and universities have responded to the 2011 OCR letter by strengthening their commitment to investigating alleged sexual assaults and, in many cases, by changing the standard of proof required if it was more stringent than preponderance of the evidence. 41 Universities' objective in making these changes is to avoid becoming the target of a Title IX investigation. In May 2014, the OCR turned up the heat by providing for the first time ever a public list of colleges and universities under investigation for violating civil rights laws in their handling of sexual violence cases. 42 The fifty-five colleges and universities listed ran the gamut geographically *599 and size-wise, and the list included both public and private institutions. Harvard Law School was named, as was the West Virginia School of Osteopathic Medicine. 43 Many seemed concerned about the public relations damage--and the possible impact on student recruitment efforts-- of making the list and have scrambled to address the issues by changing standards and procedures. 44

The changes have generated hostility and criticism from advocates for (mostly) men accused in campus proceedings. 45 When Harvard Law School settled with OCR, it agreed to a number of changes in its administrative, investigative, and adjudicative processes. 46 It also agreed to review sexual harassment complaints dating back to 2012 to determine whether the complaints had been investigated and remedied properly. 47 Twenty- eight members of the faculty responded to the agreement with a highly critical open letter published in the Boston Globe, which condemned the new standards as going far beyond what Title IX demands. 48 Among other concerns, the faculty members criticized the lack of opportunity for discovery, witness confrontation, and open testimony by the accused in hearings; the lodging of investigative, prosecutorial, fact-finding, and appellate reviewing processes in the Title IX compliance office; and the failure to ensure representation for the accused in hearings. 49 They also scolded the school for expanding the definition of sexual harassment and failing to account for the

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 118 5 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 complexities involved when intoxicated or impaired students engage in sexual contact. 50 Signatories on the letter, besides feminist professor Elizabeth Bartholet, included Charles Ogletree, Janet Halley, and Lucie White, *600 individuals not generally recognized for their reflexive support for white patriarchy. 51

Colleges and universities are scrambling to change their policies with regard to sexual assault cases and hire new administrative staff both in response to the 2011 OCR letter and to address the new legislation, but states themselves are becoming involved as well. In September, California's legislature adopted a measure mandating an affirmative consent standard for sexual intimacy, which requires individuals accused of sexual assault in campus relationships to show that they had secured active consent from their partners. 52 In response to pressure from Governor Andrew Cuomo, the State University of New York's (“SUNY”) Board of Trustees took the same step in December 2014. 53 Hearing systems must now figure out how to incorporate these rules and, for some institutions, new personnel into their extant practices. 54

II. LAYERED FRAMEWORKS FOR DISPUTE RESOLUTION

Prior to the OCR letter and CSVA, on most campuses the hearing processes used to adjudicate claims of sexual assault were not unique to sexual assault. Rather, until the recent wave of institutional reform, most universities simply swept sexual assault claims into the same system that governs all alleged violations of university codes of conduct. The procedural rules and limitations, the evidentiary guidelines, the students' ability to have a lawyer represent them or not--in general, it works the same way whether a student is accused of forcible rape, ripping off a term paper from the internet, smoking marijuana in the dorms, or stealing from her roommate.

The 2011 OCR letter and CSVA establish expectations and guidelines about standards of proof and the conduct of hearings, but they do not specify that a separate dispute resolution system must be established. Thus, as long as the procedural and evidentiary standards are met, these hearings can still take place within the context of the universities' broader, already established systems that handle other accusations of wrongdoing against students. *601 Recently adopted and strongly advanced reforms, however, press for more direct involvement and oversight by universities' offices charged with ensuring Title IX compliance. Over time, this is likely to divert more sexual assault and violence cases to universities' Title IX coordinators for resolution.

These systems are themselves the product of a tension around how to conceive of student wrongdoing. Since the establishment of the modern university, students have been doing things that universities have wanted to thwart or control. At the same time, though, universities until the 1960s viewed their undergraduate charges from a standpoint of loco parentis, framing their disciplinary function largely as a teaching one. 55 This mindset had an impact on how dispute resolution systems were established and evolved.

As shifts in thinking about rights took place in the late 1960s and early 1970s, two important things happened with respect to higher education and dispute resolution. First, students began to think of their interest in a college degree in a more vested, almost property-like sense. 56 Being kicked out of school was no longer a misfortune but rather a deprivation, requiring at least minimal due process. 57 Colleges responded by creating clearer and more regularized processes with fact-finding capacity, just as welfare offices responded to the Supreme Court's ruling in Goldberg v. Kelley 58 by creating pre-termination hearing processes. 59 No longer would it be a simple matter to cut off a student's continued access to education, either temporarily or permanently.

Second, colleges and universities distanced themselves from the loco parentis role, at least in formal terms. No longer would they place themselves in the position of parents trying to inculcate moral values and protect vulnerable children from the consequences of mistakes. Rather, students would be viewed as youthful adults

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 119 6 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 who could bear responsibility for their own decisions and the consequences of them--particularly when it came to sexual intimacy. Rules strictly limiting opportunities for intimate heterosexual encounters were relaxed, and students began to engage the university from the standpoint of consumers as much as wards. 60

*602 However, these developments layered over the pre-existing structure in which universities continued to play a role of facilitating learning and development, a role particularly manifest in dispute resolution. A university may be technically either public or private space, but it has been and continues to be a learning community and wrongdoing and disputes can be understood in part as opportunities for growth on the part of students.

Thus, the flowering of offices of conflict resolution and student hearing boards. The structure and operation of dispute resolution mechanisms exhibits an almost bewildering diversity in the details, but most institutions have some administrative structure that allows either the university or a private individual to raise a claim against a student for wrongdoing that some type of university board will adjudicate. These boards hold the power to impose sanctions ranging up all the way up to dismissal from the university. Many of these boards function a bit like courts--a panel of decisionmakers hears and weighs evidence, determines the facts of a dispute, and decides whether a student will be sanctioned--but the resemblance is superficial. As a general rule, the boards operate in far more informal ways, have broad or not really articulated rules of evidence, have the authority to create equitable solutions to disputes, and often do not allow expert representation for a student accused of wrongdoing.

Nonetheless, their power is real. Disciplinary hearings can result in the deprivation of educational opportunities in which students have vested interests, and thus are subject to legally enforceable due process standards. While public institutions maintain significant latitude in exercising judgment about students' academic standing, a long line of state and lower federal cases culminated in Goss v. Lopez 61 in 1975, which held that students subjected to serious disciplinary outcomes at state institutions had the right to a formal hearing prior to the imposition of the sanction. 62 With disciplinary sanctions, case law generally “provides more procedural protection, such as an administrative hearing, than the academic-sanction cases, although not entitling the student to the full-blown safeguards of adversarial civil proceedings.” 63 Perry Zirkel's study, which collected legal challenges brought by students facing serious sanctions from private colleges and universities, shows that legal resistance to sanctions based on due process claims has risen sharply since the 1970s. 64 Both on the private and public *603 side, this resistance has encouraged the provision of hearings for all manner of disciplinary violations and academic failings. 65

However, with respect to some kinds of wrongs, other interests are present. Federal equal opportunity law is a backdrop to educational contexts and provides an additional set of concerns and constraints. Title IX, as explained above, guarantees equal access and opportunity to women, and enables individuals who believe that dispute resolution processes have led to denial of their access or opportunity to challenge the processes and their outcomes. 66 This presents a countervailing set of incentives for universities to establish investigative and disciplinary systems that will limit their exposure to legal challenges from that angle. While it should be obvious, it is worth noting that a university's interest in avoiding private liability or censure from the federal government does not necessarily align with the interests of either alleged victims or perpetrators of sexual assault. As Thomas Keck has illustrated with respect to equal opportunity law, the creation of institutional liability for wrongs creates incentives for the shift of administrative agendas toward litigation avoidance. Offices with the stated responsibility for fulfilling legally enforceable commitments to provide equal opportunity in the workplace quickly fall into the practice of primarily ensuring that the institution behaves in ways that will protect it from liability. 67

Finally, with respect to some wrongs, universities are dealing with allegations of criminal offenses. This has become an increasingly relevant layer in regulation, as most universities of any significant geographic and

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 120 7 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 demographic size have their own police departments, which look and act very much like the police departments that serve the communities that encompass the university. As the Jameis Winston case illustrates, a report of potentially criminal behavior to either the local police or the campus police can entangle both the complainant and the accused in a fluid and Byzantine network of overlapping investigatory responsibilities and jurisdiction, depending on the student status of the individuals, the circumstances, and the location of alleged incidents. 68

*604 III. PRIVATE DISPUTES, CULTURAL STRUGGLES, AND QUASI-PUBLIC RESOLUTIONS

Much could be (and has been) written about this network and how it operates across a variety of accusations against students by other students, faculty, or university staff. 69 Let us set aside the kinds of disputes where the university is in an unproblematic adversarial standpoint with a student-- situations where a university seeks to punish or dismiss a student because of academic underperformance (which, as noted above, falls into a different category for legal review anyway) and those where a student is accused of a transgression against the university itself. This would include accusations of academic dishonesty and similar offenses, as well as concerns about damage or theft of university property. My concern is situations where two individual students are involved in a dispute with each other and one claims that the other student should be sanctioned for violating the student code of conduct.

Within this framework, even serious conflicts with potential criminal implications, including claims of sexual assault, begin as private disputes between students. They come into the university's purview when one student seeks a resolution that encompasses the membership of both the aggrieved party and the alleged aggressor within the university community. In presenting a claim against another student to the university, the complainant in effect brings the university in as an aggrieved party by framing the claim as a violation of the university's code of conduct, which articulates community standards for behavior on campus (and at times off campus as well).

Yet the accused student is also a member of the university community and has rights and interests attached to this membership. Of course, it is this membership that confers the university's jurisdiction over the student--but it also presents the university with the dilemma of having to safeguard the accused student against unwarranted or even improper uses of the conduct code against him or her. 70 The university is simultaneously responseble *605 for managing the student's discipline and protecting the student against improper uses of disciplinary proceedings against her or him. This is generally a difficult circumstance for an institution, but the difficulty is compounded in sexual assault cases because of the layering of competing rights frameworks--alongside the university's system for dispute resolution and the procedural rights it conveys to the participants within the closed world of the university, complainants can also claim that unsatisfactory resolutions constitute a violation of gender equity rights under Title IX, and the accused have procedural due process avenues that advocates are increasingly pressing them to pursue. 71

These crosscutting pressures reveal the fundamental incompatibility of the university's commitments. To the complainant, the university owes a resolution of her claim and a safe university environment, but also protection of her (or his) rights to gender equality. To the accused, the university also owes an equitable resolution of the complaint, but, in addition, it must respect his (or her) procedural due process rights. And in the background lurks the university's responsibility to its own communal aims. At the same time, once the campus police or local police become involved, a parallel but not necessarily separate process may be launched within the criminal justice system that unfolds with different standards of evidence, procedures for collecting evidence, and legal protections and pitfalls for the complainant and the accused. While universities have no obligation to assist students in navigating legal woes, many maintain offices that offer such legal assistance as a vestige of loco parentis--but may rule out providing counsel if a potential case could have students structurally aligned against each other. 72 Universities must also comply with external investigatory processes, often doing so when criminal activity is alleged, by relying on the relationships between the university police and local police.

Universities have constructed institutions that can conduct investigations and resolve disputes. At times, the issue is that there are too many institutions rather than too few. Suppose a student accuses another student of assault in a dorm setting. At some institutions, the complainant could conceivably proceed through Residential Life (with its jurisdiction over the dorms); through a peer-to-peer student mediation group; through a formal complaint to the university's disciplinary body (possibly lodged in Academic *606 Affairs or distinct from Residential Life, in an Office for Student Success); through Diversity/Inclusion (if a component of the assault arguably touched on the complainant's membership in a protected class); through the university police; or through the local police (though in some instances they might refer the case to the university police because of the location of the incident in dispute). At many institutions, a student would not be barred from pursuing several of these alternatives simultaneously, and the accused student could seek, in effect, to change venues from one to another of these institutions. This scenario could be even further complicated if the accused student retaliates by launching her or his own set of charges against the complainant.

Added to this complexity can be the active intervention of external interested parties in the currently politicized climate regarding sexual assault. One such individual is attorney and advocate Brett Sokolow, who played a key advisory role in the development of the 2011 OCR Dear Colleague letter and who has a very lucrative consulting business that helps to provide safe harbor defenses for institutions trying to avoid Title IX liability. 73 While he was an early supporter of the broader use of Title IX to address sexual assault; of late he has been championing accused assailants' rights. 74 An article published in New York Magazine portrays him and his business in a somewhat favorable light, 75 but these pieces and others illustrate how politically complex and acrimonious the issues are. Likewise, attorney and adjunct law professor Wendy Murphy has participated in or brought numerous Title IX suits against institutions on behalf of victims of sexual assault. 76 Murphy was the prime mover behind the complaint to the OCR that *607 resulted in the finding that Harvard Law School was in violation of Title IX. 77

Beyond individuals vested in working with and against institutions, the controversy occurs against the backdrop of feminist attempts to change the cultural framing of sex and consent. Feminists have struggled over the relationship between sexuality and patriarchy, fighting bitterly between and among themselves since the 1980s. 78 This struggle has reignited, moving on from the largely successful efforts to define “date rape” as a real form of rape. The cultural problem feminists are currently working to address is bridging the tensions between critiques of slut shaming (working to legitimate a stronger sense of women's agency in sexual appearance and activities) and efforts to reframe non-consensual sex as any sex that takes place when one party has not actively asserted (usually) her willingness to participate. Sexual assault on campus is a good place to open a front in this cultural struggle because the issue is acute there: many campuses have concentrations of invested feminists who want to tackle the problem, and scenarios involving coerced or pressured sex or sex between impaired participants are distressingly common phenomena.

Further complicating matters is increasingly visible anti-feminist concern and activism. The men's rights movement has taken on the issue, claiming that greater attention to and tougher standards for sexual assault prevention facilitate or encourage female students to lodge false claims against men, either out of vindictiveness or regret for unwise sexual encounters. 79 Websites such as A Voice for Men and Men Going Their Own Way highlight cases in which men were found not to be responsible for sexual assault on campus or when women withdrew accusations, further promoting the idea that false accusations of sexual assault are commonplace. 80

The result is a welter of interests held by the individuals involved, the university, and the State that, particularly in cases of sexual assault, cut across lines dividing public and private; university and community; criminal and noncriminal; and federal, state and local. The 2011 Dear Colleague OCR letter and CSVA were intended to

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 122 9 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 impose more order, logic, and consistency, and to establish clearer standards that protect the rights and interests of private victims of sexual assault. 81 These changes acknowledge that Title IX does not really address sexual assault and seek to reconfigure it so *608 that it can do so. They also seek to transform sexual assault from an individual and personal wrong into a group-oriented form of animus-based violence. However, because these changes are layered on top of an already existing system serving crosscutting and contradictory interests, this institutional innovation seems unlikely to resolve the controversy over how to handle sexual assault on campus. Also, despite the group animus frame that animates Title IX, the investigatory process and remedies also remain highly individual-oriented. While multiple layers of interests exist in other contexts involving campus wrongs, this location has become a hot spot because of the cultural struggle over the broader issues of sexual assault and the meaning of consent.

IV. POLICY AS A DRIVER FOR CULTURAL CHANGE

Along with a host of other law and society and institutional legal scholars, I have written about how cultural change plays out in legal terrain, illustrating how litigation helps to translate cultural shifts into the concepts and language of the State. 82 Those of us who do this work recognize that legal change can shape the directions that future cultural shifts take, but we have tended to focus on cultural change as the prime mover in this process. This focus then concentrates analysis on how the legal process translates shifting cultural norms to enable their assimilation into and implementation through state practices.

It strikes me that something different is going on here. Activists are pressing for changes in university policies, using Title IX and its system of oversight as the lever, in the hopes that these policy changes will achieve, or at least advance the pace of cultural change. In this regard, the current efforts probably look most like Catharine MacKinnon's ultimately successful struggle to redefine, under law, unwanted sexual advances or the sexualization of the workplace as sexual harassment, which led to a shift culturally redefining such behavior as wrong and condemnable. 83 While determining “where culture is” in order to ascertain the level of correspondence between legal standards and cultural norms is an overwhelming empirical task if one does not simply want to use public opinion as a proxy, a few observations may be difficult to contest.

*609 First, while there is cultural conflict over what constitutes rape and under what conditions sex not accompanied by forcible physical restriction can be considered rape, sexual encounters that do not involve clear verbal resistance are less readily framed as rape than those that do. This is a testament, in part, to the significant headway that the frame of “no means no” has made--headway that led, in part, to the reconfiguration of legal understandings of consent to move away from earlier “utmost resistance” standards now widely viewed as sexist. 84

Second, we mostly agree that sex occurring between impaired parties, or at least when one of the parties is significantly impaired, raises thorny questions about consent. This cultural phenomenon leads to some interesting legal distinctions. Take, for instance, New York's law governing rape. Third degree rape is defined as “[e]ngag[ing] in sexual intercourse with another person who is incapable of consent by reason of some factor other than . . . incapacity to consent,” 85 meaning (among other things) forcible compulsion or circumstances under which, at the time of the act of intercourse [[or deviate sexual intercourse], the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances. 86

Second degree rape includes individuals who “engage[] in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.” 87 And first degree rape includes

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 123 10 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 engaging in sexual intercourse with another person “[b]y forcible compulsion; or [w]ho is incapable of consent by reason of being physically helpless.” 88 The victim of sexual assault who clearly says no in a way that a reasonable person would understand may thus find his attacker convicted of third-degree rape, while the victim who is mentally incapacitated by alcohol could find an attacker convicted of second-degree rape, and the victim who is so drunk that she is physically helpless might see an attacker convicted of first-degree rape.

Many feminist campus activists are pressing for a unified principle that active consent should be required across the board. The idea appears to have first bubbled up in a policy setting in 1991, in Antioch College's widely *610 ridiculed sexual consent policy, which required clear verbal consent for all sexual activities and the reiteration of such consent as sexual intimacy escalated. 89 The policy operated quietly for a few years and then attracted a storm of negative and dismissive media attention, including becoming the butt of a Saturday Night Live sketch. 90 After its widespread cultural dismissal, it reappeared in the 2011 OCR Dear Colleague letter and burst into national visibility and controversy with California's adoption of a law imposing affirmative consent as a standard at all publicly funded colleges and universities. 91 California's action has been followed by other institutions and systems, the most prominent of which is SUNY, following Governor Andrew Cuomo's instruction to the Board of Trustees to take action on the issue. 92

The move to affirmative consent has taken place primarily in the policy sphere and seeks to reframe cultural conceptions of what constitutes consensual sex and how to identify non-consensual sex. It is probably still a bridge too far to claim a cultural toehold on the position that any sex not accompanied by affirmative consent is rape, but the policy change seeks to redefine the game and prepare the ground for these conversations. As cases play out concretely through these new standards, however, the theory is that the questions around instances of alleged sexual assault will shift, which will begin the process of shifting our cultural thinking about what constitutes rape, which could then lead both to different individual outcomes and to additional policy changes. Advocates for transformation might hope for an outcome similar to that of sexual harassment, for which legal and policy change helped to shift the cultural ground toward more widespread consensus that unwanted sexual advances and the sexualization of the workplace are inappropriate, unacceptable, and worthy of condemnation and punishment. 93

*611 V. WORKING THROUGH WHAT TO DO: PRIVATE ACTS, PUBLIC RESPONSIBILITY

Given the layering problem addressed above and the shifting cultural terrain that has not yet caught up with policy (and, it should be noted, may never need to catch up with policy if a future presidential administration backpedals on the 2011 OCR Dear Colleague letter), one suggestion endorsed by some advocates, including state legislators in Virginia, New Jersey, and Rhode Island, is that universities simply get out of the business of trying to adjudicate sexual assault cases. 94 This path would reformulate policies and practices so that if a crime is alleged, it must go through local law enforcement, or at the least, local authorities must be informed about all such allegations, so that their own mandatory processing policies can spring into operation. The legal process would therefore manage the protection of the rights of the accused and the State's interest in preventing crime can bolster victims' personal interests in seeking justice.

As a practical matter, though, this cannot be the solution. In DeShaney v. Winnebago County Department of Social Services, 95 the Supreme Court ruled that even if a state engaged in negligent neglect of wrongs, it could not be held liable even if its inactions led to serious loss of liberty, like the tragic and permanently disabling beating that Joshua DeShaney suffered at the hands of his father. 96 Because his assailant was private, the child had no recourse against the state that failed to protect him, even though there was ample evidence that he was in danger. 97 As a result of this ruling, states cannot be sued if they fail to prevent private insults to life, liberty,

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 124 11 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 or property because their inaction, even if negligent, does not trigger the Fourteenth Amendment's protection of citizens against wrongful action on the part of the state. However, Title IX's and now CVSA's standards impose an affirmative obligation upon universities that places them in a very different position than the state. In general, the state cannot be held liable for failures to act, but universities that fail to prevent gender-based wrongs, including sexual assault, can be held accountable under Title IX and CSVA. 98 State legislators' proposals to slash through the maze by requiring assault claims to go through the criminal justice system has been strongly criticized by NASPA, *612 an organization of student affairs administrators, which argues that universities, even if directed to do so by the state, cannot evade their federally imposed responsibilities. 99 Universities must work within the Title IX and CSVA framework, which complicates the already entangled lines of responsibility by deeply involving compliance officers in the processes and prioritizing administrative management of these disputes.

No institutional solution can resolve the tension between the interests of individuals experiencing sexual assault and individuals defending themselves against such accusations. The responsible university owes a duty of protection and education to both, and a broader duty to its own community to prevent a culture of sexual violence, to educate its denizens about responsible and healthy sexual relationships if irresponsible or unhealthy relationships are damaging the campus culture, to ensure that campus institutions such as athletic teams and student groups reject sexual assault, and to protect the interests of all students in fair process and equitable dispute resolution.

The result could be institutional paralysis, but universities are pressed by both sides to act and to change. All too often, the universities' responses to these pressures focus on prevention of damage to the university, particularly in the form of liability. One interesting example that reflects this reality is Harvard's new policy, which removes sexual assault cases from the ordinary process of dispute resolution and rehouses them entirely within the Title IX compliance office, a shift that the proposed CASA would also endorse. Feminist law professor Nancy Gertner argues that this placement creates a structural bias in favor of complainants, because a finding against any wrongdoing could trigger consequences (ironically under Title IX itself) if a complainant can establish that the university process did not resolve the case to protect her equality rights. 100 It also presses the university to take some kind of documentable action in its own protective interests, regardless of whether any action it takes is in the best interest of a complainant or even desired. As concerns have grown from both sides, an industry of consultancy best exemplified by Brett Sokolow's National Center for Higher Education Risk Management (“NCHERM”) is reaping the benefits *613 of this anxiety, offering services to review and design policies that will leave the universities off the hook. 101

This new industry somewhat resembles the army of diversity consultants who help employers to design policies and practices to prevent Title VII liability, and its representatives have encouraged institutions to reconfigure processes to foreclose liability--but not necessarily to try to resolve underlying cultural issues and practices that contribute to sexual assault on campus, nor to grapple honestly with the conflicting interests of the alleged victims and perpetrators. 102 As Daniel Lipson's work reveals, with respect to affirmative action, university administrators may genuinely embrace the ideological goals that drove legal and policy changes and this investment may reflect more than just the capture of administrative machinery by interested parties. 103 Yet administrators remain aware that their primary measure of success is in how well they shield the university from controversy and challenge.

What follows is speculative, an uncertain testing out of a path through this treacherous marsh. Policy change and cultural change can build upon each other productively, and this seems to be a potential way to move things forward toward a world in which sexual assault on campus is exceptionally rare, perpetrators are held accountable, and processes ensure that accountability is not based upon false reports. But it should be emphasized that eliminating sexual assault is not even the point of the aspirational hope. Rather, it is eliminating or radically changing the cultural frames that so readily produce these incidents, which individuals currently experience and frame as

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 125 12 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 individually violative and damaging sexual acts or alternatively cannot understand as problematic acts at all. 104 These frames are tightly wrapped around the role of individual consent in the inquiry.

Consent alone is an insufficient tool to understand good and bad sexual encounters because it is entirely individualized and subjective on both sides. Further, as Joseph Fischel has argued persuasively, framing the inquiry *614 around consent in many cases focuses the inquiry on the complainant and (usually) her capacity. 105 When a dispute arises regarding sexual encounters between drunk or otherwise impaired participants, the consent inquiry leaves but two possibilities: the complainant was not significantly impaired and therefore the sex was legitimate, or the complainant was so significantly impaired as to have no agency, and therefore the sex was an assault. The complainant in this situation either must have said yes or could not say no, which translates into an externally attributed no. The debate then centers around whether individual lack of consent was communicated or understood, and efforts to achieve cultural shift focus on redefining consent on the individual level. I argue that a broader community perspective is necessary, one that brings into the analysis the context of the situation. What structural elements were present? Was the situation one in which coercive sex was significantly more likely? What kind of damage to the community as well as to individuals does allowing these kinds of situations create?

Changing the rules about burdens of proof and the level of procedural rigor demanded for cases of sexual assault is simply not a strong enough lever to shift something this weighty. Nor is creating new institutions (or empowering existing ones) that have significant responsibility for defending against the potential for university liability. However, reconsidering the way that hearings play out, and the framing of the wrongs they address, may be a means of beginning the work of transforming our thinking about sexual assault.

I observe here that, thus far, we have been thinking of campus sexual assault as a private and individualized criminal or quasi-criminal wrong in which campus authorities become involved because of the need to resolve disputes between and among students. The focus from beginning to end is on individual agency, responsibility, and culpability. In the criminal justice system, when the state exercises symbolic and/or actual violence against criminal wrongdoers, its primary interest is in redressing wrongs against individuals. It is sometimes difficult for the machinery of the criminal justice system to proceed effectively if a person on the receiving end of a wrong does not want to proceed in that direction, and prosecutors will often respect these preferences, even in cases of fairly serious crimes (in part because of the difficulty of securing a conviction if a key witness is anticipated to be uncooperative). The focus on consent renders sexual assault cases particularly vulnerable to problems, as questions about consent can center around capacity, which focuses the inquiry on the complainant.

*615 But what if an allegation of sexual assault is taken not simply as a possible individual wrong being brought to the university for resolution, but rather as a broader problem for the university community? The core organizing question in the current regime is whether an individual has committed a wrongful private act against another individual such that the university must offer redress to the aggrieved party by sanctioning the wrongdoer. This raises subsidiary questions about what institution should adjudicate the individual-level dispute between parties, how to implement procedural fairness on both sides, what kinds of sanctions are appropriate if wrongdoing is found to lie, and how a university can situate itself so that it is not vulnerable to legal claims from either individual arising from the handling of the dispute. But we could reconsider how we think about these events: what if allegations of sexual assault are something more or different than complaints that private individual wrongdoing has occurred? When a sexual encounter results in a claim of sexual assault, the damage is most directly to the complainant, but he or she is not the only victim. The alleged perpetrator may experience damage and a diminishing of his (or more rarely, her) self-understanding as a sexually ethical individual, especially if he (or she) did not understand at the time of the encounter that the experience for his or her partner could be one of assault. The university community also suffers an injury as the result of these incidents that cannot easily be encapsulated or resolved in an individualized adversarial framework; the circle of damage may expand to incorporate friends and acquaintances of both parties and highly public or controversial cases may make many in the university

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 126 13 EQUALITY, PROCESS, AND CAMPUS SEXUAL ASSAULT, 75 Md. L. Rev. 590 environment feel threatened, unwelcome, disrespected, or distrusted. These broader conceptions of wrong and injury shift our attention from the individuals to the context and conditions under which sexual assaults happen.

One model for this shift derives from work by advocates for restorative justice. As Koss, Wilgus, and Williamson note, the current model for dispute resolution provides only a single option, that of a quasi-criminal justice approach, to deal with the “wide range of behavior that taken as a whole is incapable of being addressed appropriately by a one-size-fits-all resolution process.” 106 The guidelines provided in the 2011 OCR Dear Colleague letter forbid the use of mediation to address claims of sexual assault but do not mention restorative justice, which is premised on the acceptance *616 of responsibility as a precondition for participation. 107 Koss, Wilgus, and Williamson present a restorative justice model that would draw the accuser and accused into a process that would first ask the accuser to select restorative justice and the accused to accept responsibility and forego an adversarial fact-finding process. 108 This model, which they outline in detail and link to core principles of restorative justice, deviates most sharply from a quasi-criminal process in the final stage of repair, which: includes activities to (a) achieve validation and reparation for the harm caused to direct and indirect victims; (b) initiate counseling for the responsible person to address behavior that raises the risks for perpetrating sexual misconduct such as substance abuse, anger, impulse control, hostility to women, deviant arousal patterns, and unwisely selected peer groups; and (c) activities to reinforce antisexual violence norms in the campus community. 109

While their suggestion is but one example of how this could work, it provides a detailed description of how a broader understanding of harm, accountability, and responsibility can provide opportunities to move forward positively from an incident that is currently open to a more structural form of analysis. While such a system would not displace an independent proceeding in the criminal justice system if warranted, it would provide resolution beyond simply determining individual culpability or lack thereof, helping to turn attention to the circumstances that gave rise to the incident in the first place.

The table below illustrates how the current frame differs from a more community-oriented frame. As the comparison reveals, the shift would refocus the inquiry around the incident, pressing for a deeper analysis of context and structures, and promoting a broader process of resolution involving more parties.

*617 Table 1: Current Frame (individual and adversarial) Compared to Community-Based Frame

CURRENT FRAME COMMUNITY FRAME FOCUS Consent and legibility of state What structural elements were of mind of complainant (either present? Was the situation she is capable of consent or one in which coercive sex was infantilized literally). Intentions of significantly more likely? What the accused. kind of damage to the community as well as to individuals does allowing these kinds of situations create? SCOPE OF INJURY Complainant. Complainant, community, and alleged perpetrator. DRIVER OF RESOLUTION Title IX office with its incentives Centers on complainant but PROCESS to protect the institution (note that the larger community and its this potentially cuts students out wellbeing plays a role, and entirely). community members should bear a role in resolution.

SCOPE OF WRONGDOING Focuses on alleged assailant--was Focuses on the context and s/he the perpetrator and did s/he do structure--and especially focuses wrong? on cultural institutions that promote greater risk of these kinds of harms. RESPONSIBILITY Assailant, if found responsible in Consideration beyond individual the institutional process. responsibility, also addressing dangerous institutions like fraternities and some sports teams. RESOLUTION Finding of culpability and Wide range of possibilities, individual sanction; finding of focusing on restoration for the non-culpability and determination complainant, responsibility for that no sanction will be a culpable assailant, and central applied. As a distant secondary consideration of institutions and consideration, possible culpability contextual circumstances in need of institutions (i.e., a fraternity or of reform. “rogue” athletic official). *618 Framing sexual assault as a community problem greatly leverages our capacity to look at the structural factors that contribute to it. Rather than focusing solely on the individuals, their intentions, and their capacity, we might note, for instance, that fraternities are often in the background of these events. As a 2007 article summarized the research on fraternities: Among men on college campuses, fraternity men are more likely to commit rape than other college men. Thus, rape prevention efforts often target fraternity men. Compared to their peers on college campuses, fraternity men are more likely to believe that women enjoy being physically “roughed up,” that women pretend not to want sex but want to be forced into sex, that men should be controllers of relationships, that sexually liberated women are promiscuous and will probably have sex with anyone, and that women secretly desire to be raped. Beyond the aforementioned quantitative findings, qualitative research suggests that fraternity culture includes group norms that reinforce within-group attitudes perpetuating sexual coercion against women. 110

This research certainly has the potential to turn up the temperature on debates over campus assault, but that is not my intent in noting it. Rather, an instance of sexual assault in the context of a fraternity event should trigger conversations about how to intervene--and how to hold national offices accountable, rather than continuing to allow them so easily to sever their relationships with and responsibility for the young men who create communities under their auspices. 111 Likewise, universities must attend much more closely to how accusations against student athletes are handled and what kinds of formal and informal resources athletes competing in marquee sports receive when something goes wrong. 112 If support for student athletes contributes to lack of accountability and responsibility for wrongdoing, or, as Lavigne reports, the fostering of a culture of intimidation against *619 individuals accusing athletes of wrongdoing, these practices must be reconsidered and reformed. 113

The new legislation, coupled with the federal reinterpretation of Title IX, contemplates shifting dispute resolution to university offices managing Title IX administration rather than maintaining it in more general venues for dispute resolution. 114 Universities would be well advised to ensure that this shift does not take things backwards by removing broader community perspectives from the process and diminishing the capacity to incorporate the needs and interests of the community into dispute resolution. Rather, if new processes are contemplated under Title IX jurisdiction, this might be an opportunity to integrate more community perspectives and to think about ways to create more positive sexual cultures.

Nonetheless, as noted above, the real issue is not so much the location of dispute resolution, even though institutional locations may affect the courses that dispute resolution takes. I am not recommending adding yet another layer of institutional structure to dispute resolution mechanisms, but rather bringing the interests of the community more to the fore and stepping back from an individualized quasi-criminal dispute resolution frame in favor of a more justice-oriented analysis. This might also imply working out ways to give students more agency as a community to engage cultural struggle directly and develop standards that can not only right individual wrongs but can create incentives for reconstructing sexual conversations and the contexts in which sex happens. Whether this happens through Title IX or through another institutional structure, it is an essential step toward building a campus environment that will encourage individual development toward healthy and egalitarian sexual relationships and build communities that facilitate this development.

Footnotes a1 Continued from the 2015 Maryland Constitutional Law Schmooze featured in 75 MD. LAW REV. (2015). aa1 University at Albany, SUNY. My profuse thanks to the United Union Professionals' Women's Concerns Committee for raising concerns about changes in rules regarding how to handle sexual assault on campus, and to Patty Strach and Virginia Eubanks for helping me to think through these issues more deeply. Thanks too to Libby Sharrow for her guidance on Title IX issues. They should not be blamed for the conclusions I have reached in this Paper.

1 ABC News via Good Morning America, Oregon Players Taunt Jameis Winston with ‘No Means No’ Chant (Jan. 2, 2015), http://abcnews.go.com/Sports/oregon-players-taunt-jameis-winston-means-chant/story?id=27957808.

2 Walt Bogdanich, A Star Player Accused, and a Flawed Rape Investigation, N.Y. TIMES (Apr. 16, 2014), http://www.nytimes.com/interactive/2014/04/16/sports/errors-in-inquiry-on-rape-allegations-against-fsu- jameis-winston.html.

3 Id.

4 WILLIAM SHAKESPEARE, THE COMEDY OF ERRORS.

5 Bogdanich, supra note 2 .

6 Id.

7 Id.

8 Id.

9 Kevin Vaughn, Documents: Police, FSU Hampered Jameis Winston Investigation, FOX SPORTS (Oct. 10, 2014), http://www.foxsports.com/college-football/story/jameis-winston-florida-state-tallahassee-police-hindered- investigation-documents-101014?vid=340426819547.

10 Rachel Axon, Florida State Investigating Jameis Winston, Attorney Says, USA TODAY (Sept. 4, 2014), http://www.usatoday.com/story/sports/ncaaf/2014/09/04/jameis-winston-florida-state-investigation-sexual- assault-allegations/15080921/.

11 Tom Spousta, Jameis Winston Is Cleared in Hearing over Student's Rape Accusation, N.Y. TIMES (Dec. 21, 2014), http://www.nytimes.com/2014/12/22/sports/ncaafootball/jameis-winston-is-cleared-in-florida-state-hearing.html.

12 20 U.S.C. §§ 1681-1688 (2012); see also, DEP'T OF JUSTICE, Overview of Title IX of the Education Amendments of 1972, 20 U.S.C.A § 1681 et. seq., http://www.justice.gov/crt/overview-title-ix-education-amendments-1972-20- usc-1681-et-seq (last visited Dec.9, 2015).

13 20 U.S.C. § 1681.

14 Breaking Down Barriers: A Legal Guide to Title IX and Athletic Opportunities (May 12, 2007), NATIONAL WOMEN'S LAW CENTER, http://www.nwlc.org/resource/breaking-down-barriers-chapter-1-introduction.

15 Lauren Schroeder, Cracks in the Ivory Tower: How the Campus Sexual Violence Elimination Act Can Protect Students from Sexual Assault, 45 LOY. U. CHI. L.J. 1195, 1202 (2013).

16 Id. at 1207.

17 Id.

18 Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 LOY. U. CHI. L.J. 205, 225 (2011). The Supreme Court declined to allow private liability through Title IX under a theory of respondeat superior or constructive notice for individual employees' wrongdoings in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) and in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) established a stringent standard beyond deliberate indifference for private Title IX suits seeking liability for student-to-student harassment.

19 Schroeder, supra note 15, at 1212.

20 Id. at 1213.

21 See, e.g., Bonnie Fisher, et al., Making Campuses Safer for Students: The Clery Act as Symbolic Legal Reform, 32 STETSON L. REV. 61 (2003).

22 Cantalupo, supra note 18, at 226.

23 See U.S. DEP'T OF EDUCATION OFFICE FOR CIVIL RIGHTS, DEAR COLLEAGUE LETTER: SEXUAL VIOLENCE (Apr. 4, 2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html.

24 Id.

25 Id.

26 Violence Against Women Act Reauthorization of 2013, tit. III, § 304, 127 Stat. 54, 89-92 (2013) (to be codified at 20 U.S.C. § 1092). This Act, referred to by its congressional proponents as the Campus Sexual Violence Act, incorporated some, but not all, of the provisions recommended by victims' advocates under the umbrella of the Campus SaVE Act. See, e.g., KNOW YOUR IX, Understanding the Campus SaVE Act, http://knowyourix.org/understanding-the-campus- save-act/.

27 Schroeder, supra note 15, at 1225; KNOW YOUR IX, supra note 26.

28 Violence Against Women Act Reauthorization of 2013, tit. III, § 304.

29 Id.

30 Michael Stratford, Standards of Evidence, INSIDE HIGHER ED (Feb. 25, 2014), https://www.insidehighered.com/ news/2014/02/25/federal-campus-safety-rules-reignite-debate-over-standard-evidence. A major difference between CSVA and the 2011 letter is in how CSVA addresses internal investigative processes. Some advocates believe that it does not go far enough because it does not mandate that these processes use the lower “preponderance of the evidence” standard rather than the “clear and convincing” standard in order to impose penalties against alleged perpetrators. See WHITE HOUSE TASK FORCE infra note 36.

31 Id.

32 Many Republicans opposed expanding campus sexual assault protections under the Violence Against Women Act. See, e.g., House Republicans Introduce Partisan VAWA That Fails to Protect All Victims, NAT'L TASK FORCE TO END SEXUAL AND DOMESTIC VIOLENCE AGAINST WOMEN (Feb. 26, 2013), http://4vawa.org/4vawa/house- republicans-introduce-partisan-vawa-tha.

33 Campus Accountability and Safety Act, S. 590, 114th Cong. (2015). This bill incorporates many of the remaining ideas promoted by advocates for the Campus Sexual Violence Elimination Act (SaVE). See, e.g., CLEARYCENTER.ORG, THE CAMPUS SEXUAL VIOLENCE ELIMINATION ACT (SAVE), http://clerycenter.org/campus-sexual-violence- elimination-save-act.

34 See Michael Stratford, Sex Assault Bill Unveiled, INSIDE HIGHER ED (July 31, 2014), https:// www.insidehighered.com/news/2014/07/31/us-senators-announce-campus-sexual-assault-legislation.

35 CONGRESSIONAL RESEARCH SERVICE, S.590--CAMPUS ACCOUNTABILITY AND SAFETY ACT, https:// www.congress.gov/bill/114th-congress/senate-bill/590. See also S. Daniel Carter, The Campus Sexual Violence Elimination Act, JEANNE CLERY ACT INFO, http://www.cleryact.info/campus-save-act.html.

36 See U.S DEP'T OF EDUCATION OFFICE FOR CIVIL RIGHTS, DEAR COLLEAGUE LETTER (Apr. 24, 2015), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf. See also WHITE HOUSE TASK FORCE TO PROTECT STUDENTS FROM SEXUAL ASSAULT, OFF. OF VICE PRESIDENT, NOT ALONE, THE FIRST REPORT OF THE WHITE HOUSE TASK FORCE TO PROTECT STUDENTS FROM SEXUAL ASSAULT (Apr. 2014), https://www.notalone.gov/assets/report.pdf.

37 See text accompanying Schroeder, supra note 15, at 1225.

38 The three most commonly used standards are: “preponderance of the evidence,” which means that it is more likely than not that one side's interpretation is correct; “clear and convincing,” which requires a higher level of certainty on the part of the fact finders; and “beyond a reasonable doubt,” which is the very high standard that is required for criminal convictions.

39 See U.S. DEP'T OF EDUCATION OFFICE FOR CIVIL RIGHTS, DEAR COLLEAGUE LETTER: SEXUAL VIOLENCE (Apr. 4, 2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html; Stephen Henrick, A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses, 40 N. KY. L. REV. 49, 53 (2013).

40 See, e.g., Goss v. Lopez, 419 U.S. 565 (1975).

41 Allie Grasgreen, Rules Shift After Federal Push, INSIDE HIGHER ED. (May 2, 2011), https:// www.insidehighered.com/news/2011/05/02/ ocr_title_ix_letter_prompts_universities_to_change_sexual_assault_procedures.

42 Press Release, U.S. DEP'T OF EDUC., U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations (May 1, 2014), http://www.ed.gov/news/press-releases/us- department-education-releases-list-higher-education-institutions-open-title-ix-sexual-violence-investigations.

43 Stacy Teicher Khadaroo, 55 Colleges with Title IX Sexual Violence Cases Pending: Is Yours Listed?, CHRISTIAN SCI. MONITOR (May 1, 2014), http://www.csmonitor.com/USA/Education/2014/0501/55-colleges-with-Title-IX-sexualviolence-cases-pending-Is-yours-listed-video.

44 See, e.g., newly created websites for the University of California (http://sexualviolence.universityofcalifornia.ed/) and the State University of New York (http://system.suny.edu/sexual-violence-prevention-workgroup/policies/).

45 Emily Matchar, ‘Men's Rights' Advocates Are Trying to Redefine the Definition of Rape, NEW REPUBLIC (Feb. 26, 2014), http://www.newrepublic.com/article/116768/latest-target-mens-rights-movement-definition-rape.

46 Press Release, U.S. DEP'T OF EDUC., OFFICE FOR CIVIL RIGHTS, Harvard Law School Found in Violation of Title IX, Agrees to Remedy Sexual Harassment, Including Sexual Assault of Students (Dec. 30, 2014), http://www.ed.gov/ news/press-releases/harvard-law-school-found-violation-title-ix-agrees-remedy-sexual-harassment-incl.

47 Id.

48 Elizabeth Bartholet et al., Rethink Harvard's Sexual Harassment Policy, BOSTON GLOBE (Oct. 15, 2014), https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/ HFDDiZN7nU2UwuUuWMnqbM/story.html#.

49 Id.

50 Id.

51 Id.; see, e.g., OGLETREE, CHARLES J. ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRST HALF- CENTURY OF BROWN V. BOARD OF EDUCATION (2004); Janet E. Halley, Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict, 9 MELBOURNE J. INT'L L. 78 (2008); Lucie E. White, On Guarding the Borders, 33 HARV. C.R.-C.L. L. REV. 183 (1998).

52 Nick Smith, ‘Yes Means Yes' California SB 967 Sex Assault Bill Signed by Gov, ABC 7 NEWS (Sept. 29, 2014), http:// abc7chicago.com/news/yes-means-yes-california-sb-967-sex-assault-bill-signed/328741/.

53 Press Release, SUNY, Governor Cuomo Announces SUNY Adopts a Comprehensive System-Wide Uniform Sexual Assault Policy for All 64 Campuses (Dec. 2, 2014), https://www.suny.edu/suny-news/press-releases/ december-2014/12-2-14-sex-assault-policies/.

54 See infra Part II.

55 Philip Lee, The Curious Life of in Loco Parentis at American Universities, 8 HIGHER ED. IN REV. 65 (2011).

56 Thomas J. Bender, Jr., Due Process in Academic Dismissals from Post-Secondary Schools, 26 CATH. U. L. REV. 111, 122-24 (1977).

57 Bender traces the emergence of due process for dismissals back to 1961. Id. at 111-12.

58 397 U.S. 254 (1970).

59 Curtis J. Berger & Vivian Berger, Academic Discipline: A Guide to Fair Process for the University Student, 99 COLUM. L. REV. 289 (1999).

60 Brian J. Willoughby et al., The Decline of in Loco Parentis and the Shift to Coed Housing on College Campuses, 24 J. ADOLESCENT RES. 21 (2009).

61 419 U.S. 565 (1975).

62 Id. at 583-84.

63 Perry A. Zirkel, Procedural and Substantive Student Challenges to Disciplinary Sanctions at Private--as Compare with Public--Institutions of Higher Education: A Glaring Gap?, 83 MISS. L.J. 863, 868 (2014) (footnote omitted).

64 Id.

65 Id.

66 See supra Part I.

67 Thomas Keck, From Bakke to Grutter : The Rise of Rights-Based Conservatism, in THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT 415-16 (Ronald Kahn & Ken Kersch eds., 2006).

68 See supra notes 1-11 .

69 See, e.g., Fernand N. Dutile, Students and Due Process in Higher Education, 2 FLA. COASTAL L.J., 243 (2001); Jason J. Bach, Students Have Rights, Too: The Drafting of Student Conduct Codes, 2003 BYU Educ. & L.J. 1 (2003); Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 DUKE L.J. 487 (2012).

70 As a brief aside, university police forces have silently gained significant authority over even wrongs committed by non- university individuals in recent years. A personal anecdote to illustrate: when my wallet and keys were stolen from my office last spring, I was surprised to find as the investigation unfolded that it continued to be managed by the UAlbany Police Department, even after a suspect was identified who had no affiliation with the university whatsoever. She was eventually arrested by the Colonie Police Department on another charge, and the UAlbany police collaborated with the Colonie police in presenting information to the local DA to press charges.

71 See, e.g., Rebecca Everett, Lawsuit Against Amherst College from Expelled Student Offers Window into Sexual Misconduct Investigation and Hearing Process, N.H. GAZETTE (Aug. 7, 2015), http://www.gazettenet.com/news/townbytown/amherst/17179365-95/lawsuit-against-amherst-college-from- expelled-student-offers-window-into-sexual-misconduct-investiga.

72 See, e.g., UNIVERSITY AT ALBANY, SUNY'S STUDENT LEGAL SERVICES, http://www.albany.edu/ studentassociation/legalservices.shtml (last visited Nov. 18, 2015); UNIVERSITY OF VERMONT'S STUDENT LEGAL SERVICES, http://www.uvm.edu/~sls/ (last visited Nov. 18, 2015).

73 Brett A. Sokolow, About Brett Sokolow, THE NCHERM GROUP, LLC (June 9, 2015), https://www.ncherm.org/ consultants/brett-sokolow/.

74 Compare Brett A. Sokolow, A Model Campus Sexual Misconduct Response Protocol, NAT'L CENTER FOR HIGHER EDUC. RISK MGMT. (2004), https://www.ncherm.org/ pdfs/MODEL_CAMPUS_SEXUAL_ASSAULT_RESPONSE_PROTOCOL_2004.pdf, with Nick Anderson, Catholic U. Student Recounts Her Struggles After Reporting a Sexual Assault, WASH. POST (June 29, 2014), http://www.washingtonpost.com/local/education/catholic-u-student-recounts- her-struggles-after-reporting-a-sex-assault/2014/06/29/9ed3b4f0-e694-11e3-afc6-a1dd9407abcf_story.html; Bob McGovern, Full Court Press: Sexual Harassment Has Colleges Walking Fine Line, BOSTON HERALD (May 30, 2015), http://www.bostonherald.com/news_opinion/local_coverage/2015/05/ full_court_press_sexual_harassment_has_colleges_walking_fine.

75 Sarah Miller, Meet the Man Telling Colleges How to Solve Their Rape Problem, N.Y. MAG. (Oct. 21, 2014), http:// nymag.com/thecut/2014/10/meet-the-man-telling-colleges-how-to-solve-rape.html.

76 See WENDY MURPHY, JD, http://www.wendymurphylaw.com/ (last visited Nov. 18, 2015).

77 Caroline McKay, Law School Challenged Under Title IX, HARV. CRIMSON (Apr. 22, 2011), http:// www.thecrimson.com/article/2011/4/22/Harvard-law-school-title-ix-wendy-murphy/.

78 ANN BROOKS, POSTFEMINISMS: FEMINISM, CULTURAL THEORY, AND CULTURAL FORMS 205-06 (1997).

79 Matchar, supra note 45.

80 Id.

81 See supra Part I .

82 JULIE NOVKOV, CONSTITUTING WORKERS, PROTECTING WOMEN: GENDER, LAW, AND LABOR IN THE PROGRESSIVE ERA AND THE NEW DEAL YEARS (2001); JULIE NOVKOV, RACIAL UNION: LAW, INTIMACY, AND THE WHITE STATE IN ALABAMA, 1865-1954 (2008).

83 MacKinnon worked with feminist lawyers in the 1970s to define the creation of a sexualized hostile environment as a form of sexual harassment; ultimately these activists convinced the Equal Employment Opportunity Commission to add this behavior to its guidelines as a form of sexual harassment, and the Supreme Court validated this interpretation in Meritor Savings Bank v. Vinson, 447 U.S. 57 (1986); see Reva Siegel, Introduction: A Short History of Sexual Harassment, in DIRECTIONS IN SEXUAL HARASSMENT LAW (Catharine MacKinnon & Reva Siegel eds., 2003).

84 Joshua Mark Fried, Forcing the Issue: An Analysis of the Various Standards of Forcible Compulsion in Rape, 23 PEPP. L. REV. 1277, 1279-83 (1996).

85 N.Y. PENAL LAW § 135.25 (McKinney 2001).

86 N.Y. PENAL LAW § 130.05 (McKinney 2001).

87 N.Y. PENAL LAW § 130.30 (McKinney 2001).

88 N.Y. PENAL LAW § 130.35 (McKinney 2001). Two additional situations qualify as first degree rape under § 130.35: when a person engages in sexual intercourse with a person “who is less than eleven years old; or who is less than thirteen years old and the actor is eighteen years old or more.”

89 Arun Rath, The History Behind Sexual Consent Policies, NPR (Oct. 5, 2014), http:// www.npr.org/2014/10/05/353922015/the-history-behind-sexual-consent-policies.

90 Id.

91 Jake New, First Do No Harm, INSIDE HIGHER ED. (Feb. 19, 2015), https://www.insidehighered.com/ news/2015/02/19/open-letter-calls-legislators-reconsider-campus-sexual-assault-bills.

92 See supra Part I.

93 This is not to say that the advent of sexual harassment law has resulted in the complete abatement of these behaviors, nor has it created full equality for women in the workplace. However, behavior that would have been readily dismissed as merely annoying or barely notable prior to MacKinnon's efforts is now much more likely to trigger negative reporting and active intervention, up to and including dismissal for cause.

94 New, supra note 91.

95 489 U.S. 189 (1989).

96 Id. at 191-93.

97 Id. at 195-97.

98 At least one commentator views this tension as problematic, executing an end run around the Supreme Court's ruling in United States v. Morrison, 529 U.S. 598 (2000), disallowing direct suits against the state through the Violence Against Women Act for failing to prevent violence against women. See Henrick, supra note 39, at 74.

99 An open letter signed by the president and several other members of the organization notes that such legislation would put universities at odds with federal law and policy requirements for campus handling of such allegations. See Kevin Kruger et al., An Open Letter to the Elected Leaders of the 50 United States, NASPA (Feb . 19, 2015), http:// www.naspa.org/images/uploads/main/Joint_omnibus_bill_statement_letterhead.pdf.

100 Nancy Gertner, Sex, Lies and Justice: Can We Reconcile the Belated Attention to Rape on Campus with Due Process?, AM. PROSPECT (Winter 2015), http://prospect.org/article/sex-lies-and-justice.

101 WELCOME TO THE NCHERM GROUP, LLC, https://www.ncherm.org/ (last visited Nov. 18, 2015).

102 For but a few examples of such consultants, see THE HUMAN EQUATION, http://www.thehumanequation.com/ and EMPLOYMENT PRACTICES SOLUTION, http://www.epspros.com/Home.

103 Daniel Lipson, Embracing Diversity: The Institutionalization of Affirmative Action as Diversity Management at UC- Berkeley, UT-Austin, and UW-Madison, 32 LAW & SOC. INQUIRY 985 (2007).

104 I must insert a caveat here. I am not endorsing a full blown sex positive perspective. I disagree vehemently with analyses that rely heavily on individual sexual autonomy and choice as the front line means of addressing sexual violence and coercion, because these approaches ignore both the structural reality of patriarchy and the cultural frames it produces

and reproduces. Turning a “no” into a “yes” in one's own head is not an answer, and rape need not be understood as a purely intersubjective crime.

105 Joseph Fischel, Sex and Harm in the Age of Consent (2011) (unpublished Ph.D. dissertation, Univ. of Chicago) (on file with author).

106 Mary P. Koss et al., Campus Sexual Misconduct: Restorative Justice Approaches to Enhance Compliance with Title IX Guidance, 15 TRAUMA, VIOLENCE, & ABUSE 242, 245 (2014). Restorative justice focuses on the broader circle of responsibility and relationships around damaging behavior by individuals. Dispute resolution based in restorative justice focuses on identifying and repairing the harms of wrongful acts and building foundations for future positive community relations. See, e.g., Artika R. Tyner, A New Addition to the Alternative Dispute Resolution Practitioner's Toolkit: The Exploration of Restorative Justice and Practical Implementation, 6 LAW TRENDS & NEWS PRACTICE AREA J. (2009).

107 Id. at 246.

108 Id. at 249-51.

109 Id. at 252.

110 Foubert et al., Behavior Differences Seven Months Later: Effects of a Rape Prevention Program, 44 J. STUDENT AFF. RES. & PRAC. 728, 730 (2007) (internal citations omitted).

111 It is beyond the scope of this Paper, but a 2014 article in The Atlantic outlines the many ways that fraternities have manipulated the legal system and the charter arrangements with their members to be able to evade legal liability for a whole host of wrongs by stripping members of their associational protections at the first sign of trouble. Caitlin Flanagan, The Dark Power of Fraternities, ATLANTIC (Mar. 2014), http://www.theatlantic.com/features/ archive/2014/02/the-dark-power-of-fraternities/357580/.

112 A recent investigation conducted by ESPN revealed shocking evidence of Florida State's and other athletic departments' preferential treatment for, provision of private legal resources to, and inappropriate influencing of police on behalf of the male athletes accused of committing crimes. Paula Lavinge, Lawyers, Status, Public Backlash Aid College Athletes Accused of Crimes, ESPN (June 14, 2015), http://espn.go.com/espn/otl/story/_/id/13065247/college-athletes-major- programs-benefit-confluence-factors-somes-avoid-criminal-charges.

113 Id.

114 See supra Part II . 75 MDLR 590

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62 Duke L.J. 487

Duke Law Journal November, 2012

Note

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE APPROPRIATE BALANCE BETWEEN DUE PROCESS AND VICTIM PROTECTION

Matthew R. Triplett d1

Abstract

Peer sexual assault is a significant problem on American college and university campuses. On April 4, 2011, the Office for Civil Rights of the Department of Education sought to address this problem by issuing a new “Dear Colleague Letter” that provided enhanced guidance on how educational institutions should adjudicate such incidents. The letter has the perverse effect of complicating matters further by blurring the already fine line between victim protection and due process for the accused, and it exposes a potential liability trap for educational institutions. This Note explains why the law surrounding victim protection and due process is difficult for institutions to apply and argues that the Department of Education should produce a model judicial policy so that institutions, victims, and accused students will have more certainty in this complicated arena. In furtherance of such a policy, this Note offers specific due-process protections for accused students that should be embraced by educational institutions and the Department of Education alike.

Introduction

Student-on-student sexual assault is a significant problem on college and university campuses, 1 as demonstrated by several highly *488 publicized episodes at well-known institutions of higher education. 2 As colleges and universities pursue effective means of targeting this problem, many schools have themselves become targets of legal action. Both sexual-assault victims as well as alleged perpetrators have sued their schools for failing to provide sufficient investigative and judicial proceedings when responding to accusations of assault. 3 Some of these cases have resulted in significant judgments against universities. 4

On April 4, 2011, the Office for Civil Rights (OCR) of the Department of Education (DOE) addressed the issue of campus sexual assault by issuing a new “Dear Colleague Letter” 5 that *489 outlined the procedures that institutions should follow to remain in compliance with Title IX, 6 the federal statute that prohibits sex discrimination in education. 7 Many colleges and universities responded to the April 4, 2011 Dear Colleague Letter (“Dear Colleague Letter”) by amending their procedures for adjudicating allegations of sexual assault. 8 Meanwhile, the letter itself has sparked a debate about the appropriate balance between protecting victims of assault and ensuring adequate due process for the accused in the context of campus adjudications. 9 Scholars such as Professor Peter Berkowitz of Stanford University criticized the letter as an affront to *490 male students' due-process rights. 10 Others, however, lauded the letter for ushering in an era of clarity in the world of Title IX compliance. 11

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In the midst of this debate, this Note argues that the Dear Colleague Letter suffers from a fatally inadequate discussion of the appropriate balance between victim protection and due process. Specifically, the document has raised more questions than it has answered, leaving the interests of both victims and accused students in flux. Because institutions simultaneously face statutory duties to respond properly to victims' claims of assault and constitutional or contractual obligations to provide due process to the accused, better-defined policies--such as those advanced in this Note--are needed. Without such guidance, institutions are left with a choice. They may closely follow the OCR's guidelines on victim protection, thereby risking possible due-process claims from alleged perpetrators, or they may independently attempt to balance victim-protection and due-process interests and risk Title IX violations for inadequate victim protection. Under either approach, institutions face potential liability, 12 and both victims and alleged perpetrators may be insufficiently protected.

This Note begins by outlining the legal forces at play in peer sexual-assault cases. Part I summarizes the campus disciplinary process and discusses Title IX, due process, and the Federal Educational Rights and Privacy Act (FERPA). 13 This analysis reveals that a lack of guidance on how these various processes and laws interact has produced confusion about how institutions should *491 balance due-process rights and victim protection. In Part II, this Note closely examines the Dear Colleague Letter and explains how the letter's guidelines have failed to address the confusion. Part III outlines a new approach to adjudicating peer sexual assault that includes universal standards on the burden of proof, cross-examination, discovery, evidentiary matters, and access to counsel.

This Note embraces several normative views that should be noted at the outset. First, students in the aggregate should be entitled to consistent due-process protections. Because most students lack information about available due process when selecting their future alma mater, they need a baseline of protection. 14 Second, this Note assumes that both institutions and victims would benefit from a uniform framework. Only by enabling institutions to confidently respond to reports of violence--without fear of liability for violating an alleged perpetrator's due-process rights--will assault victims be protected fully. Third, despite recent inflammatory comments to the contrary, 15 victim protection and due process for the accused are not mutually exclusive. Institutions, given appropriate guidance, can balance these two interests. Therefore, this Note advocates for certain due-process protections, not at the expense of victim protection, but so that institutions will have clarity on how to adjudicate sexual-assault reports and so that the interests of both victims and the accused are adequately protected.

I. The Legal Landscape: A Complicated Web of Statutory, Constitutional, Contractual, and Judicial Forces

When college students report to college or university officials that they have been sexually assaulted 16 by a peer, they immediately *492 trigger a host of legal obligations for the institution. This Part provides an overview of the campus adjudicatory system and explains how that system must work in tandem with federal and applicable state laws. Section A summarizes the basic campus adjudicatory system. Section B provides an overview of the applicable federal laws and principles. Section C explains how and why these systems have created confusion and tension for college and university administrators.

A. The Campus Adjudicatory System

At the outset, distinguishing between the campus adjudicatory system and the criminal-justice system is important. The Dear Colleague Letter addresses only campus adjudicatory procedures at colleges and universities throughout the United States. 17 The criminal-justice system, on the other hand, is concerned with criminal prosecution. Although the same conduct might be adjudicated in both systems, the systems themselves and their attendant levels of victim protection and due process are distinct. 18

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The methods and procedures of campus adjudicatory systems differ across institutions. The procedures can also vary within an institution depending on the type of misconduct at issue. Generally, however, the institution will have an adjudicatory process that is managed by an office of student affairs. 19 In addition, all institutions are bound by their own policies and procedures vis-à-vis the accused and by constitutional due-process mandates, state contract law, federal education laws, and the oversight and guidance of the OCR. 20

In a typical sexual-assault adjudication, the accused student first receives notice of the charge from the student-affairs office and is *493 asked to respond, either in writing or in person. 21 Next, the accused student and the alleged victim appear before a misconduct panel, which is akin to a jury and is comprised of a blend of students, faculty, or staff. 22 This panel hears arguments, makes a factual finding, and, if appropriate, assigns a sanction. 23 An appellate review is also generally available, consisting of faculty members or administrators who evaluate a written appeal. 24 This appellate review is typically the last stage within the institution, though some institutions may allow the student or the student's parents to petition senior officers for relief. Students who are dissatisfied with the outcome of the institution's adjudication must resort to the state or federal court system. 25

B. Applicable Laws and Constitutional Principles

Throughout the campus adjudicatory system, two major bodies of law interact to ensure that all parties are represented properly. First, Title IX prohibits sex discrimination in higher education. 26 Second, either contractual 27 or constitutional due-process rights *494 require that certain procedures be followed before a student is disciplined. 28 But these considerations are only the beginning of the analysis. Other laws, including FERPA, create additional complications in the relationship between Title IX and due process. 29

1. Title IX: Federally Mandated Victim Protection. Enacted as part of the Education Amendments of 1972, 30 Title IX 31 is one of the most important federal statutes in higher education. Along with Title VI of the Civil Rights Act of 1964 32 and the Supreme Court's precedent on discrimination generally, Title IX protects college and university students from sex-based discrimination by conditioning the receipt of federal funds on compliance with the statute. 33 In relevant part, the statute states, “No person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 34 Subsequent legislation expanded the scope of the statute to include the entire educational institution whenever a single program or school within the institution receives federal funding. 35 Because virtually every higher-education *495 institution benefits from federal assistance, the law applies universally. 36

When it enacted Title IX, Congress sought to prohibit the “use of federal resources to support discriminatory practices and to provide individual citizens with effective protection against such practices.” 37 Although little legislative history exists regarding the statute's intended purpose and scope, 38 the law's structure suggests that it was meant to play a similar role as Title VI of the Civil Rights Act of 1964, except with a specific focus on sex and the school environment. 39 Accordingly, the statute applies to a host of activities and programs within higher education, including admissions and financial aid, 40 sexual harassment, 41 and athletics. 42

Title IX is enforced and administered by the OCR, 43 and the OCR has accordingly promulgated official regulations that interpret *496 and expound upon the statute itself. 44 In addition, the OCR and the DOE issue dear colleague letters and other

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE..., 62 Duke L.J. 487 publications that provide clarification to administrators on complicated and timely compliance issues. 45 These documents offer important guidance on the enforcement strategies of the OCR and the DOE, and courts give Chevron deference to reasonable interpretations of Title IX found in dear colleague letters. 46

Although the statute itself contains no reference to student-on-student sexual assault, courts have applied Title IX to such gender violence by defining sexual assault as a type of sex discrimination. 47 Courts have also considered institutional liability in the presence of deliberate indifference to student-on-student sexual assault. 48 To establish deliberate indifference and to trigger institutional liability, the victim must show that a relevant institutional official had actual notice of the assault and refused to take appropriate action. 49 The possibility of liability incentivizes higher-education institutions to be proactive in addressing accusations of sexual assault. Yet despite *497 rigorous institutional mechanisms to avoid liability, colleges and universities are confronted with Title IX sexual-assault litigation somewhat regularly. 50 Therefore, the risk of liability for educational institutions is real. This risk encourages institutions to be vigilant, and potentially even overly zealous, in adjudicating accusations of sexual assault. 51

2. Due Process: Constitutional and Contractual Protections for the Accused. Although Title IX creates an incentive for institutions to act expeditiously in response to accusations of sexual assault, due-process concerns provide an equally important incentive for institutions to take a deliberate and careful approach to addressing such matters. Due process is a foundational component of the American legal system, ensuring that accused individuals are able to take full advantage of the crucible of litigation before they are held responsible for a crime or impropriety. 52 In the criminal-justice system, due-process rights provide a vast shield of protective affirmative rights and presumptions. Some notable examples of affirmative rights include the rights to consult counsel, to be tried by a *498 jury of one's peers, to subpoena witnesses, and to cross-examine witnesses. 53 Individuals accused of crimes also benefit from a presumption of innocence and the highest standard of proof in the American legal system, the beyond-a-reasonable-doubt standard. 54 In the higher-education context, however, students have never been afforded such expansive rights. 55 In fact, the Supreme Court squarely held that students have no constitutionally protected substantive due-process rights to their education. 56 Instead, courts have recognized that college students at public universities possess only limited procedural due-process rights. 57 Students at private institutions, on the other hand, are protected by the Constitution only when procedures are fundamentally unfair. 58 Otherwise, due-process rights exist only in the institution's student handbook provisions, which are enforceable through breach-of-contract claims. 59 Because courts have defined due process differently for public- and private-school students, this Note discusses those rights separately. a. Due-Process Rights for Public-School Students. Students enrolled at public colleges and universities have constitutionally protected due-process rights, although courts disagree as to the exact parameters of those rights. The first case to recognize that a public-college student should be afforded procedural due-process rights under the Fourteenth Amendment was *499 Dixon v. Alabama State Board of Education, 60 in which students alleged that their due-process rights had been violated when they were expelled without a hearing from Alabama State College after participating in civil-rights protests. 61 The Fifth Circuit held that even though the Constitution does not afford any substantive right to an education, “it nonetheless remains true that the State cannot condition the granting of even a privilege upon the renunciation of the constitutional right to procedural due process.” 62 Accordingly, Dixon held that public-college students had private interests at stake in remaining enrolled at the public university of their choice and therefore were entitled to due process under the Fourteenth Amendment when those interests were in jeopardy. 63 Since Dixon, courts have accepted that public-college students should be afforded due-process protections in serious disciplinary hearings. 64 In fact, in Goss v. Lopez, 65 the Supreme Court *500 hailed Dixon as a “landmark” decision and used Dixon's reasoning to support the Court's conclusion that public elementary-school students have due-process rights in

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE..., 62 Duke L.J. 487 certain circumstances. 66 Modern courts have refined the Dixon reasoning to hold that students' procedural due-process rights arise from liberty interests in their reputations and academic good standing. 67

Although courts have consistently observed that procedural due-process rights exist for public-college students who have been accused of serious infractions, they have been less consistent on the scope of those due-process rights. 68 Instead, courts prefer ex post, case-by-case determinations of the rights to which students are entitled. 69 Such an approach is characteristic of the American judicial system generally, but educational institutions--who owe fiduciary and contractual obligations to all their students, including the accused and the *501 victim 70 --need further guidance to be equipped to act ex ante, before the interests of either party have been compromised.

The need for more specific guidance is exposed by comparing similar cases from different courts. For example, in Donohue v. Baker, 71 the court held that the accused had a right to cross-examine his accuser in a campus adjudication, particularly because the “case [was] one of credibility” dealing with his testimony against that of an alleged sexual-assault victim. 72 In reaching this conclusion, the court acknowledged that the interests in protecting the victim from embarrassment and further harassment were substantial but reasoned that such concerns were outweighed by the accused student's right to confront his accuser. 73

Donohue stands as an outlier, however, and most other courts have held that students in disciplinary hearings have no right to cross-examination. 74 A Connecticut state court held that a student who was accused of sexually intimidating a classmate was not denied due process when he was prevented from cross-examining the alleged victim. 75 Similarly, another court explained that “the right to unlimited cross-examination has not been deemed an essential requirement of due process.” 76 Despite the fact that the weight of authority is against the right of cross-examination, educational *502 administrators still fear that they may be held liable if the Donohue reasoning spreads to other jurisdictions. 77

Courts also disagree about whether due process requires that students have access to legal counsel. For instance, in Donohue, the court found no due-process violation when the accused student was denied access to nonstudent legal counsel. 78 Likewise, in Danso v. University of Connecticut, 79 a student's due-process rights were not infringed when he was denied access to the student advocate of his choice. 80 By contrast, in Furey v. Temple University, 81 the Eastern District of Pennsylvania held that a student who was facing expulsion should have been granted access to legal counsel. 82

As these cases demonstrate, the judicial approach to defining due-process rights for public-college students has been inconsistent. Moreover, courts have not addressed some pressing questions about due-process rights, such as whether the accused has the right to subpoena witnesses or compel discovery. Greater certainty is needed. b. Due-Process Rights for Private-School Students. Courts have declined to extend the reasoning of Dixon to private universities and, as a result, students at private institutions face even greater variability in terms of their due-process rights. 83 Because students at such institutions lack constitutional due-process rights, they must derive any due-process rights from state contract law as it relates to student disciplinary policies and from other agreements between the student and the institution. 84 The only way in which the Constitution could be *503 implicated is if the student can show that the institution's procedures were not “fundamentally fair.” 85

Therefore, private-college students are less protected than their public-school peers. For example, in Cloud v. Trustees of Boston University, 86 the court emphasized that

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“[i]f school officials act in good faith and on reasonable grounds . . . their decision to suspend or expel a student will not be subject to successful challenge in the courts.” This deferential standard of review applies when . . . there is no contractual right to a hearing. Where, as here, the university specifically provides for a disciplinary hearing before expulsion, [[the court] review[s] the procedures followed to ensure that they fall within the range of reasonable expectations . . . . [The court] also examine[s] the hearing to ensure that it was conducted with basic fairness. 87 Under this deferential standard, the court found no contractual due-process violations, even though the student's ability to cross-examine witnesses had been curtailed by one witness who had refused to state her identity, the student's past criminal proceedings had been introduced as prejudicial character evidence, the university had failed to produce relevant employee witnesses, and the committee was possibly biased. 88 The court made its determination even though the relevant student handbook provisions stated that students who faced disciplinary action by the institution would be provided “the right to have the case decided by an impartial judicial body,” “the right to confront and cross examine any witness,” and “the right to call witnesses and introduce evidence.” 89

Likewise, in Jansen v. Emory University, 90 a court was unwilling to engage in a substantive analysis of the student's contractual due-process claims and instead summarily rejected the claims as falling outside the realm of the court's expertise. The court reasoned that institutions should be afforded autonomy in adjudicating academic infractions--as opposed to disciplinary infractions, which trigger only *504 limited judicial oversight. 91 Although the Supreme Court has supported the distinction between academic and disciplinary matters for due-process purposes, 92 in Jansen the student's poor academic record resulted from two failing grades that were administered for purely disciplinary reasons. 93 Nevertheless, the court refused to substantively examine the student's contract claims. 94

Even when courts have recognized contractual due-process causes of action, the results have been inconsistent. For example, the Eighth Circuit in Corso v. Creighton University, 95 facing facts nearly identical to Jansen, reached an opposite conclusion. In Corso, the court declined to give deference to an institution's adjudication of academic infractions and instead found that the institution had breached its contractual promise of due process. 96 Thus, in the due- *505 process context, courts have been inconsistent, with variations existing from court to court. 97 Likewise, as students move from the public- to the private- school context, their constitutional due-process rights change dramatically. This lack of consistency between courts and across the public- and private-school divide is concerning.

3. FERPA: Mandated Limits on Available Information. Although FERPA is not a primary regulator of student sexual-assault proceedings, it does complicate sexual-assault proceedings by curtailing the amount of information that can be made available in the adjudicatory process. The law protects as confidential any document that is classified as an “education record[].” 98 This phrase has a broad and general definition and includes “information directly related to a student” that is “maintained by an educational agency or institution or by a person acting for such agency or institution.” 99 In sexual-assault cases, highly pertinent information relating to the events in question or to one party's past may be protected. Although the statute provides some limited exceptions to allow for disclosure, no such exception exists for campus adjudicatory proceedings. 100 Therefore, as the Dear Colleague Letter acknowledges, FERPA curtails the amount of information available in campus adjudicatory hearings. 101 In fact, educators have long expressed confusion about how the law should operate in sexual-assault proceedings. 102 For related reasons, commentators have criticized the law for stymieing campus-safety efforts. 103

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*506 C. Cause for Confusion

Faced with these competing legal considerations, college and university administrators struggle to balance their obligations to victims of sexual assault with their corresponding duties to provide due-process protections to accused students. Title IX creates a firm obligation for institutions to respond vigilantly to reports of assault. 104 But courts enforcing due-process rights-- enforceable under either constitutional or contract law-- mandate that institutions provide some level of process, though these institutions have received limited and contradictory guidance about what process is actually due. This uncertainty and variability produces a liability trap for educators who are unsure of how to proceed. 105 FERPA further complicates matters by restricting the information that can be considered in sexual-assault proceedings. 106 As a result, students are subjected to fundamentally different processes depending on the institution they attend. 107 In response to this inconsistency, the OCR published its Dear Colleague Letter.

*507 II. The Dear Colleague Letter

The April 4, 2011, Dear Colleague Letter, released amid much fanfare, 108 frames its guidance by emphasizing the OCR's concern with high rates of sexual violence on school campuses. 109 It then proceeds to discuss the obligations of schools receiving federal funds to respond to such violence, particularly focusing on procedural requirements. 110 The letter concludes with recommendations for preventing assault. 111

As a guidance document, the Dear Colleague Letter effectively conveys the OCR's expectations. It builds on the OCR's earlier guidelines 112 by focusing almost exclusively on the victim's interests 113 and articulates at least five substantive points that raise due-process concerns for the accused. 114 Ultimately, the letter fails to address this key underlying issue: how Title IX should interact with applicable due-process requirements for the accused.

A. Analyzing the Dear Colleague Letter's Substantive Points

First, and perhaps most controversially, the Dear Colleague Letter recommends a specific standard of proof for judicial *508 proceedings involving accusations of peer sexual assault. 115 The letter prescribes a preponderance-of-the-evidence standard, noting that “[t]he ‘clear and convincing’ standard . . . currently used by some schools, is a higher [and improper] standard of proof.” 116 It goes on to explain that campus adjudicatory proceedings are wholly distinct from criminal proceedings and that neither proceeding's outcome should affect the other. 117 This standard-of-proof portion of the Dear Colleague Letter has engendered the most criticism from commentators. 118 DOE Assistant Secretary for Civil Rights Russlynn Ali has noted that, notwithstanding this vociferous criticism, this portion of the Dear Colleague Letter is critically important. 119 Referencing the clear-and-convincing standard of proof, she has elaborated that “[t]he guidance answers a longstanding question that we have heard from many general counsels about, and that is what the standard of proof is. . . . Far too often universities use that higher standard when it comes to Title IX.” 120

Second, the Dear Colleague Letter outlines a discovery process that is curtailed by FERPA. 121 Although both the alleged victim and perpetrator must have “similar and timely access to any information that will be used at the [judicial] hearing,” this access is severely limited in situations in which FERPA mandates a right to privacy. 122 The Dear Colleague Letter does not detail the specific FERPA provisions that are triggered during the institution's judicial process, but it does note that “the alleged

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE..., 62 Duke L.J. 487 perpetrator should not be given access to communications between the complainant and a counselor or information regarding the complainant's sexual history.” 123 After the institution's judicial process concludes, FERPA is triggered again *509 and shapes the way in which the institution may handle an announcement of guilt or innocence. 124 The institution may inform the victim of the result of the hearing and any subsequent sanctions or penalties against the perpetrator and may also disclose this information to the general public. 125 But according to the OCR, FERPA prohibits the institution from disclosing any other information relating to the student's education record, such as whether the student was punished for conduct not relating to the harassed student. 126

The Dear Colleague Letter also addresses privacy issues from the victim's perspective. 127 Before an investigation can begin, the complainant must consent. 128 In addition, the complainant retains the power to request confidentiality, in which case the institution must take appropriate steps to prevent the accused from learning of the accuser's identity. 129 In the presence of certain factors, however, the institution may be entitled to disclose the victim's identity. 130 The institution must weigh the complainant's request for confidentiality against “the seriousness of the alleged harassment; the complainant's age; whether there have been other harassment complaints about the same individual; and the alleged harasser's rights to receive information about the allegations if the information is maintained by the school as an ‘education record’ under [FERPA].” 131

Third, the Dear Colleague Letter gives the institution complete discretion to determine whether the parties are permitted to have counsel. 132 The letter takes no position on whether counsel should or should not be allowed but notes that both parties must be treated equally in this regard. 133 Fourth, the letter takes a strong position on the question of cross-examination, noting that “OCR strongly discourages schools from allowing the parties personally to question *510 or cross-examine each other.” 134 Fifth, the Dear Colleague Letter mandates that an appeals process be made available to both parties. 135

In addition to these substantive points, the Dear Colleague Letter clarifies other important issues to help institutions better recognize and prevent prohibited conduct. For instance, it defines sexual harassment as “unwelcome conduct of a sexual nature,” which “includes sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” 136

Finally, although the letter focuses almost exclusively on the interests of the victim, it contains two important sentences that discuss the rights of the accused. Specifically, “[p]ublic and state-sponsored schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due-process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.” 137

B. Unaddressed Questions

Despite the Dear Colleague Letter's specific guidance, it fails to address fundamental questions about how the complex web of higher-education regulations pertaining to sexual assault and due process should interact to form one seamless umbrella of guidelines. Instead, tension remains between the requirements of Title IX, constitutionally and contractually mandated due process, and the rules of confidentiality and disclosure under FERPA. For example, an institution trying to comply simultaneously with Donohue and the Dear Colleague Letter might reach an impasse because Donohue requires cross- examination as a matter of right in cases where the main issue is witness credibility, 138 whereas the letter cautions against the practice. Perhaps more worrisome, however, is the reality that wide variance continues to exist across institutions and among sexual-assault adjudication policies. 139

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*511 III. Moving Forward: Confronting the Need for Clarity

To resolve the continued uncertainty, the OCR should issue further guidance in the form of a model judicial policy that must be adopted by institutions and implemented uniformly. Such a document would ensure consistency and enable institutions to balance more appropriately the competing interests of protecting victims of sexual assault while also providing adequate due process for the accused. Admittedly, the OCR is tasked with enforcing Title IX, 140 not with ensuring that students accused of sexual assault are provided appropriate due process. But because public institutions must also ensure that students' due-process rights are constitutionally protected, Title IX must operate within constitutional limits and may not mandate a more expeditious proceeding than the Constitution would require. 141 Without affirmative guidance on how to balance these competing obligations, the OCR's views on Title IX will remain ineffectual, thereby endangering victims, increasing the probability of liability on the part of the institution for denial of due process, and jeopardizing the accused student's due-process rights. 142

In the spirit of this recommendation, the remainder of this Note advocates for the adoption of specific due-process provisions that should be incorporated by institutions of higher education. Admittedly, these recommendations are framed in constitutional due-process principles and are, therefore, more applicable to public institutions. In the interest of uniformity, however, both public and private institutions should embrace these suggestions. The Note begins in Section A by outlining the relevant interests at stake and explaining why campus sexual assault requires its own, particularized due-process standard. Section B offers recommendations regarding *512 the standard of proof, cross-examination, discovery, and access to counsel.

A. Peer Sexual Assault Is a Distinct Circumstance That Warrants Specialized Due-Process Protections

Before devising an approach to campus sexual assault that incorporates both Title IX and procedural due-process requirements, understanding the particular interests at stake in the context of peer sexual assault is important. These interests should trigger a specific and limited standard that is applied only in this special context. The need for such special treatment is demonstrated by applying the Supreme Court's precedent for determining applicable due-process requirements. 143 In Mathews v. Eldridge, 144 the Court directed lower courts to weigh three factors when determining the proper scope of constitutionally protected due- process rights in a particular situation or context: First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state] interest, including the function involved and fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 145

This Section analyzes each of these factors in the context of sexual-assault campus adjudicatory proceedings. First, accused students have liberty interests in preserving their good names and reputations. 146 This interest in protecting one's reputation from false accusations and preserving one's unblemished scholastic record is vitally important, particularly in the modern era, because false accusations can have lasting implications. In fact, compared to the effects of other types of infractions such as academic dishonesty, the implications of being found responsible for sexual assault by a judicial panel can endure throughout one's lifetime. Some of the more *513 extreme cases, including the Duke lacrosse scandal 147 and the University of the Pacific gang-rape case, 148 demonstrate how college sexual-assault proceedings have resonance with the national media. Although

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE..., 62 Duke L.J. 487 not every sexual-assault case will garner such far-reaching publicity, many offenses do attract local media coverage and can provoke significant discussion and controversy among the student body. 149

Second, the risk of erroneous deprivation of the accused student's liberty interest is substantial, particularly in the cases in which the evidentiary record consists only of the accuser's testimony. In Mathews, the Court distinguished between two types of scenarios: those in which the dispute involves competing expert interpretations of agreed-upon facts and those in which the facts themselves are in question and are subject to the veracity of the witnesses. 150 In the latter situation, when witness credibility is essential, oral evidence and cross-examination are very important because, without such evidence, the risk of erroneous deprivation of liberty is high. 151 Most campus sexual-assault cases fall into this area of disputed facts. A verdict will often turn on the disciplinary panel's view of witness credibility, rather than on debates between experts. Therefore, the second Mathews factor points in favor of providing as much evidentiary process as possible so that the disciplinary panel is deciding cases with more rather than less evidence before it.

On the other side of the scale is the third Mathews factor--the cost that increased process would impose on the adjudicatory system. In Mathews, these costs were divided into two categories: the costs of implementing the procedural requirements and the costs of allowing the beneficiary of the process to remain in possession of his or her *514 interests until a decision had been reached. 152 In the higher-education context, both sets of costs may be significant.

The first group of costs--those of actually implementing the due-process procedures at the hearing--can be substantial. Courts have generally avoided imposing far-reaching due-process burdens in the education context for fear that such burdens would detract from the educational environment and displace the autonomy of the institution's educational mission. 153 Expansive due-process requirements are expensive, time-consuming, and generally beyond the expertise of the educational context. For example, the right of the accused to subpoena witnesses or to conduct discovery might easily tax a student-affairs office's limited resources. More importantly, the prospect of an expensive, embarrassing, and prolonged adjudicatory process could decrease a victim's willingness to report incidents of assault. This chilling effect is itself a type of cost that is borne by the institution, both in the form of an eroded feeling of academic unity on campus as well as in the form of potential Title IX liability for insufficient protections against assault. 154

Notwithstanding the fact that a full trial-like process would impose tangible costs on educational institutions, there are some mitigating factors unique to the higher-education context that may limit the costs. For example, campus adjudicatory proceedings are often at least partially staffed by student members who are not paid for their services. 155 The use of such student judicial officers does not completely eliminate the institutional burden or the potential for undue embarrassment for the victim, 156 but student participation does mitigate the expense of the proceeding. On a more theoretical level, *515 due process is valued as a part of the broader educational mission of the institution. A survey of the mission statements and objectives of the top twenty-five colleges and universities in the United States 157 reveals that, with near uniformity, institutions of higher education value the quest for knowledge and truth in a complex world. 158 Therefore, the institution itself has often demonstrated a commitment to the discovery of truth in all aspects of the educational environment, and this mission would be furthered by implementing additional process requirements. 159 Rather than an ancillary distraction, therefore, due process can be viewed as an investment in the institution's core academic mission--a consideration which may partially offset the magnitude of the cost.

The second group of costs--those of allowing the accused student to remain enrolled at the institution--can also be significant. For an educational institution, sexual-assault scandals are concerning for at least two reasons. First, they threaten to subvert the learning environment by detracting from the student body's focus on education. Second, they can potentially produce a culture of fear among students on campus. Particularly on a residential campus, where the institution desires to foster a community in

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE..., 62 Duke L.J. 487 which students can feel free to learn and explore, lingering safety concerns can be catastrophic to the educational mission. In an effort to address these concerns, institutions may incur additional costs. For example, the *516 institution may decide to rearrange the victim's student's course schedule to avoid any contact with the victim. 160

On balance, these three Mathews factors point toward a special due-process standard that applies specifically to peer sexual assault. Students who have been accused of sexual assault face serious consequences if they are found guilty or even accused of such infractions, which, unlike many other types of campus infractions, are particularly attention-grabbing and lasting in their implications. 161 The third Mathews factor, however, requires an important cost-benefit analysis that protects institutions from having to provide overly burdensome protections. Finally, the dual pressures facing institutions are heightened in this context where Title IX and FERPA apply, evincing a need for a special approach. Such external pressures simply do not apply in other common campus disciplinary matters such as academic-honesty violations.

B. Specific Recommendations: Standard of Proof, Evidentiary Issues, and Access to Counsel

In light of the Mathews calculus, this portion of the Note outlines specific due-process protections that should be embraced by institutions and the OCR in a model judicial policy. Specifically, this Section provides recommendations regarding (1) the standard of proof; (2) cross-examination procedures; (3) the discovery process; and (4) access to counsel.

1. A Preponderance Standard of Proof Is Most Appropriate. The most controversial aspect of the Dear Colleague Letter has been its recommendation for a new standard of proof in campus adjudicatory hearings. 162 The OCR's call for a universal preponderance-of-the-evidence standard has left many crying foul and accusing the OCR of openly targeting male students. 163 Notwithstanding this criticism, a preponderance standard is appropriate under Mathews and is actually not even the most pressing due-process issue implicated by the Dear Colleague Letter. *517 The OCR justifies its call for a preponderance-of- the-evidence standard by analogizing to the administrative law context, in which a preponderance standard is the norm. 164 Putting aside any arguments about the persuasiveness of this analogy, a preponderance standard is appropriate under Mathews because it is the fairest allocation of power in the special context of sexual assault. A preponderance standard recognizes that the campus adjudicatory system is distinct from the criminal-law context 165 and acknowledges that the institution has competing obligations to the victim and to the accused. 166 As between these interests, setting the scale either below or above the midline of certainty skews the balance too far in the favor of the advantaged party.

Likewise, the special nature of sexual-assault hearings must be kept in mind. In many sexual-assault proceedings, the entire factual record will consist of testimony from the alleged victim and the alleged assailant. 167 In this proverbial “he said, she said” environment, the standard of proof should be lower, not higher. 168 When combined with a presumption of innocence in favor of the accused, any standard above a preponderance would produce an insurmountable obstacle for victims with meritorious claims, thereby implicating Title IX liability 169 and exposing the institution to added costs. Therefore, a preponderance standard is appropriate because it satisfies the first two Mathews factors by adequately protecting against wrongful findings while also protecting the institution from the costs of Title IX liability by not eliminating the possibility of victory for the victim. 170

Moreover, from a theoretical perspective, the Supreme Court has emphasized that [t]he function of a standard of proof . . . is to “instruct the factfinder concerning the degree of confidence our society thinks he should *518 have in the correctness of factual conclusions for a particular type of adjudication.” . . . In a criminal case . . . the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. 171

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For this reason, the criminal-justice system utilizes the beyond-a-reasonable-doubt standard. 172 A “less commonly used” standard is that of clear and convincing evidence, 173 which is what many institutions employed before the Dear Colleague Letter. 174 The Court has cautioned, however, that this standard is appropriate only when “particularly important individual interests or rights are at stake” 175 such as in “cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant.” 176 By contrast, the preponderance standard is generally appropriate in the civil context because it allows “[t]he litigants [to] share the risk of error in roughly equal fashion.” 177

Applying these guidelines to the higher-education context demonstrates that a clear-and-convincing or beyond-a-reasonable- doubt standard is inappropriate. It should be recalled that, although an allegation of sexual assault may have criminal implications, the campus adjudicatory proceeding is distinct from that process and does not implicate the same liberty interests. 178 In the criminal-justice system, the accused is entitled to the beyond-a-reasonable-doubt standard, 179 but such a standard is inappropriate in the context of campus adjudicatory proceedings. Though the interests of the accused in not being wrongfully disciplined for sexual misconduct are substantial, the Supreme Court has not held that they reach such a level as to require a clear-and-convincing standard. For instance, one *519 of the classic cases in which a clear-and-convincing standard applies is in the context of immigration hearings. 180 In those situations, the interests of the accused in remaining in the United States are sufficiently weighty to trigger the clear-and-convincing standard. 181 By contrast, the interests of a college student in protecting his or her good name and remaining enrolled in her or his school of choice do not rise to the level of significance of a deportation hearing. Such interests, though important, will generally pale in comparison to one's interest in a lawful immigration status. Rather, the accused student's interests are more like those in a hearing for involuntary discharge from the military, in which a preponderance standard is used. 182 Like members of the military who have selected and committed to a particular military branch, students have voluntarily enrolled in their school of choice and have an interest in remaining at that school and in protecting their good name. 183

Finally, the third Mathews factor--that of the administrative burden-- does not outweigh the need for a preponderance standard. Relative to the clear-and-convincing standard that critics of the Dear Colleague Letter have advocated, 184 a preponderance standard imposes fewer burdens upon an institution providing adjudication. Moreover, a higher burden might also expose the institution to Title IX liability by stifling victims' abilities to seek institutional remedies, thereby imposing additional cost considerations. Therefore, institutions should adopt a preponderance standard because that standard advances Title IX's goals without infringing on due process for the accused.

*520 2. Cross-Examination Should Be Embraced as an Affirmative Right of the Accused. Without any footnotes or citations to legal authority, the Dear Colleague Letter states that the “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” 185 Whether the OCR would deem cross-examination conducted by the accused student's counsel to be more appropriate is unclear. What is clear, however, is that this policy potentially places many institutions in a direct conflict with their duty to provide due process to the accused. 186 As explained in Part I, one federal district court has recognized that students in disciplinary hearings must be afforded the right to confront their accuser. 187 Particularly in the context of accusations of sexual assault, witness credibility may be the determinative factor; a student's legal defense--and academic and professional future--may turn on the ability to cross-examine the accuser. 188 For administrators who are concerned that other courts might adopt the Donohue reasoning, 189 the OCR's guidelines pose a direct conflict between competing obligations.

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The OCR should amend its views on cross-examination or should at least provide a legal basis for its conclusions. Otherwise, institutions are left uncertain as to whether they should allow direct cross-examination, and a false step in either direction could produce liability. 190 The preferable approach would be for the OCR to declare cross-examination permissible, though most courts that have decided this issue have declined to disturb the institution's discretionary decision to allow or disallow cross- examination. 191 Much of this reluctance has centered on concerns that cross-examination would overly burden the campus adjudicatory process 192 or affirmatively *521 harm the victim. 193 These are weighty concerns, but Mathews requires that institutions also consider the accused's need to meaningfully confront the accuser and the charges that have been asserted, 194 factors that will generally outweigh the added time investment required to permit cross-examination.

Moreover, cross-examination can be structured in such a way that the victim is protected from embarrassment. In Donohue, for instance, the court merely held that the accused student should be afforded the opportunity “to direct questions to his accuser through the panel.” 195 This method of cross-examination would prevent the victim from being directly questioned by the accused assailant. Institutions have found many creative ways of permitting cross-examination that enable the accused student to have the opportunity to confront the witness, while also protecting the victim from suffering psychological harm. For instance, institutions have allowed cross-examination to take place through video 196 or while the witness was shielded from the view of the accused and the accused's counsel. 197 Although these methods may increase the administrative burden on the institution, thus implicating the third Mathews factor, they are already in common use and are an appropriate compromise between exposing the victim to unbridled stress and not allowing the accused to confront his accuser.

Further, the unique context of student sexual-assault proceedings necessitates the right to cross-examination, which may be the only opportunity that the accused student has to make a meaningful argument of fact. In analogous contexts, such as in the Administrative Procedure Act 198 and in hearings for involuntary military discharge, *522 both of which implicate similar liberty interests, cross-examination is permitted. 199 In fact, the Federal Circuit has held that cross-examination is required in military-discharge proceedings in situations that are potentially destructive for the victim. 200

The same factors and considerations as those in military-discharge hearings are at play in the context of college disciplinary hearings for allegations of sexual assault. The institution should have some leeway to conduct procedures as it sees fit, but accused students must be given the opportunity to cross-examine their accusers because in this special context the entire proceeding often turns on witness credibility. Further, the testimony of unavailable witnesses will often be presented as hearsay evidence, 201 which creates an even greater interest in allowing the cross-examination of those witnesses who are present. By this reasoning, the accused's interest in avoiding wrongful deprivation of rights and the need to uncover the truth--the first and second Mathews factors--point toward allowing cross-examination. Likewise, the ability to utilize innovative cross-examination methods satisfies the cost concerns captured in the third Mathews factor. Accordingly, the OCR should amend its views on cross-examination to allow institutions to ensure that adequate due process is provided to accused students.

*523 3. Crafting an Innovative Discovery Process. The Dear Colleague Letter implicates, but unfortunately does not address, other evidentiary issues, creating further confusion for institutions, victims, and accused students. For instance, one problem that has emerged in many campus hearings has been the inability of the accused student to access relevant evidence to build an effective defense. 202 The OCR, however, has not commented on whether an open discovery process is permissible.

Generally speaking, the accused student should not have the power to compel testimony or to conduct mandatory pretrial depositions. These powers are inappropriate for the higher-education sexual-assault context because they would impose significant costs on the institution and serve to delay the process and undermine the institution's need for discretion and

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE..., 62 Duke L.J. 487 inconspicuousness. 203 Additionally, in the sexual-assault context, compelled testimony may be traumatizing to the students who are forced to testify, particularly if relationships with either the victim or the accused are damaged as a result. 204 These costs are not outweighed by either the first or second Mathews factor. The accused student's liberty interest does not require an ability to drag unwilling witnesses to a disciplinary hearing or a deposition room, particularly in an administrative proceeding in which criminal punishment is not at stake. Although facts will vary from case to case, student-on-student sexual assault is often a witnessless crime, which means that depriving accused students of the subpoena or deposition powers will rarely jeopardize their ability to present a defense. Furthermore, FERPA's requirements protect the victim's academic record from being subjected to trial-like scrutiny, 205 making compelled discovery tools impractical. Accordingly, courts have recognized that far-reaching discovery techniques are inappropriate in the higher-education context. 206

Though certain discovery tools are inappropriate, some modicum of discovery is essential for due process. As Justice Brennan explained, discovery is important because it “helps develop a full *524 account of the relevant facts, helps detect and expose attempts to falsify evidence, and prevents factors such as surprise from influencing the outcome at the expense of the merits of the case.” 207 An innovative approach is necessary. At the very minimum--and as recognized by the Dear Colleague Letter 208 -- the accused must have access to the evidence that will be presented at the hearing. This requirement finds support in all the Mathews factors. 209 Moreover, this approach facilitates compliance with FERPA because it mandates that institutions turn over only the information that has been selected as admissible at the hearing, which presumably is also FERPA compliant.

Additionally, other, more innovative discovery techniques could easily be adopted that would enrich due process without overly burdening the institution or the victim. First, although subpoenas are inappropriate, institutions should formally encourage witnesses to attend hearings by excusing them from class or scheduling hearings when school is in session, if timely. Second, nonstudent employees should be required to testify when requested because institutional employees must further the institution's truth-seeking duty and, accordingly, being compelled to testify should be viewed as falling within the scope of employment.

Second, the accused should be permitted to use optional written interrogatories when witnesses are unavailable or unwilling to participate in the hearing. Likewise, institutional officers should be willing to act on the accused student's behalf to contact potential witnesses and ask questions for the purpose of reporting the contents of these conversations to the judicial panel. Such evidence might be hearsay, but hearsay evidence is permissible in this context. 210 Some institutions already act on the accused student's behalf during cross-examination in campus adjudications, 211 and this approach could *525 produce similar beneficial results during discovery. More importantly, by coordinating discovery from within the student-affairs office, the institution will be able to more carefully manage contact between the accused student and the alleged victim, hopefully preventing any antagonistic behavior by either party. 212 Further, conducting discovery via the student-affairs office would be another way for the institution to ensure that the accused student is not seeking FERPA-protected information or harassing the victim. These techniques would supplement the institution's own investigation into the accusation of sexual assault and would increase the amount of information that can be submitted to the disciplinary panel. Therefore, this innovative approach to discovery provides a way for the institution to balance its obligations to both the victim and the accused.

4. Equal Treatment in Accessing Counsel. The OCR has chosen to defer to the institution on the issue of whether counsel should be permitted at disciplinary hearings. 213 Although this approach is better than simply issuing a directive without legal support-- as the OCR did on the issue of cross-examination 214 --a more consistent standard is needed to ensure adequate protection of both the victim's and the accused student's interests. With this goal in mind, institutions should generally provide both the accused and the victim with the option, but not the right, to obtain legal counsel. For students who elect not to obtain legal counsel, a student or administrative advocate should be offered as an alternative. Such a regime is supported by Mathews because it comports with the magnitude of the interests at stake in the sexual-assault context and ensures that the students' respective rights

SEXUAL ASSAULT ON COLLEGE CAMPUSES: SEEKING THE..., 62 Duke L.J. 487 are meaningfully advanced. 215 Further, allowing counsel does not pose a prohibitive burden under the third Mathews factor. In fact, many institutions already allow counsel for the accused. 216 Others provide *526 student advocates. 217 These solutions are adequate and provide the accused student the opportunity to consult with an adviser before mounting a defense.

Although the parties should have the right to access counsel, this right should work in tandem with the ability of the counterparty to access counsel. In other words, when the accused can afford counsel but the victim cannot, then neither party should have counsel. 218 In that situation, the institution should offer to each student the services of a competent student or administrative advocate of the parties' choosing. Notably, this equal-representation approach would go further in protecting the victim than the OCR's own policy, which mandates only equal formal access to counsel. 219 By contrast, the equal-representation approach will ensure that neither party has a competitive advantage because of one party's ability or willingness to pay. Admittedly, this approach steps outside the Mathews calculus by considering issues of fairness to the victim rather than focusing solely on the accused student's due-process rights. This focus is appropriate, however, so long as the accused student is provided some form of representation. Beyond this baseline, fairness between the parties should be a relevant factor.

Conclusion

Despite the OCR's attempts to provide specific guidance to institutions of higher education on how to respond to accusations of peer sexual assault, numerous questions and conflicts remain. The basis for such confusion rests largely on the fact that Title IX must work in tandem with constitutionally or contractually defined due-process rights, yet to date the OCR has not issued specific guidance on how these two bodies of law should interact. Other laws such as FERPA come into play at the margins and make matters even more complicated. This uncertainty is unacceptable, particularly given the weight of the interests involved. Therefore, the OCR should issue further guidance in the form of a model judicial policy that more *527 carefully outlines how due process and victim protection should interact. Ideally, such guidelines would spur Congress to provide corresponding legislative enactments that recognize the interplay between Title IX and due-process rights.

In light of these interests, this Note argues for the implementation of a special due-process regime for sexual-assault adjudication on college and university campuses. These recommendations should be embraced by institutions, as they comply with the Mathews calculus and should be explicitly ratified by the OCR. Specifically, institutions should (1) adopt a preponderance- of-the-evidence standard, as already recommended by the OCR; (2) provide accused students with the right to cross-examine all witnesses, subject to specific limits to protect the victim from undue embarrassment or stress; (3) implement a limited and innovative discovery process, in which the institution provides assistance to the accused while also permitting timely access to available factual evidence, subject to FERPA's limitations; and (4) give both the accused and the victim the option, but not the right, to obtain legal counsel, but ensure that both parties have equal types of representation.

By articulating and approving a regime of due-process rights for students accused of sexual assault--such as the type of regime proposed in this Note--the OCR would enable institutions to balance their obligations to both victims and accused students more carefully, thereby providing more adequate and far-reaching protection for both parties.

Footnotes d1 Duke University School of Law, J.D. expected 2013; Wake Forest University, B.A. 2009. I am grateful to Dr. Jill Tiefenthaler and Jermyn Davis for introducing me to this topic, to Professor Jane Wettach for her guidance throughout the writing process, and to Graham Cronogue for his helpful advice. Sincerest thanks, as well, go to the entire Duke Law Journal staff, and in particular to Paige

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Gentry and James Gillenwater for their thoughtful suggestions and insights. And as always, I am eternally grateful to Andrea Davis Triplett for her inspiration, love, and support throughout this and all my other endeavors.

1 See Christopher P. Krebs, Christine H. Lindquist, Tara D. Warner, Bonnie S. Fisher & Sandra L. Martin, The Campus Sexual Assault (CSA) Study: Final Report, at xviii (2007), available at http:// www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf (finding that one in five women are victims of sexual assault while in college).

2 See, e.g., Grayson Sang Walker, The Evolution and Limits of Title IX Doctrine on Peer Sexual Assault, 45 Harv. C.R.-C.L. L. Rev. 95, 95-98 (2010) (discussing the well-publicized Tiffany Williams case at the University of Georgia); Ben Eisen, A Rape Case That's Not Going Away, Inside Higher Ed (June 19, 2009, 3:00 AM), http://insidehighered.com/news/2009/06/19/assault (describing an alleged gang rape at the University of the Pacific).

3 See, e.g., Christina Huffington, Yale Students File Title IX Complaint Against University, Yale Herald, Mar. 31, 2011, http:// yaleherald.com/topstory/breaking-news-yale-students-file-title-ix-suit-against-school (“The Department of Education's Office for Civil Rights...announced ... it will open an investigation to review Yale's policies for dealing with sexual harassment and sexual assault.”); Elyse Ashburn, Education Dept. Tells 2 Colleges To Revamp Sexual-Harassment Policies, Chron. Higher Educ. (Dec. 10, 2010), http://chronicle.com/article/Education-Dept-Tells-2/125704 (discussing settlements between the Department of Education (DOE) and Eastern Michigan University and Notre Dame College in which the institutions would revamp their efforts to comply with Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686 (2006), to avoid further investigations); Allie Grasgreen, Wrong People on Trial?, Inside Higher Ed (June 7, 2011, 3:00 AM), http://www.insidehighered.com/ news/2011/06/07/women_raise_questions_about_ university_judicial_hearings_under_title_ix (discussing victims' lawsuits against educational institutions).

4 See, e.g., Found. for Individual Rights in Educ., In Verdict Against Sewanee, Federal Jury Sends Important Message About Proper Handling of Sexual Assault Cases, Moral Liberal (Sept. 6, 2011), http:// www.themoralliberal.com/2011/09/06/in-verdict-against- sewanee-federal-jury-sends-important-message-about-proper-handling-of-sexual-assault-cases (“In a decision that should send some rumblings through the world of higher education ... the jury awarded $26,500 in compensatory damages to the former student for [the institution's] negligence in mishandling his disciplinary hearing [for an alleged sexual assault].”); see also Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007) (permitting a rape victim's Title IX suit for damages against her former university to proceed).

5 Letter from Russlynn Ali, Assistant Sec'y for Civil Rights, Office for Civil Rights, U.S. Dep't of Educ. (Apr. 4, 2011), available at http:// www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf. Dear colleague letters are guidance documents written to educational administrators that explain the OCR's legal positions and enforcement priorities. The letters lack the force of congressionally made law, but courts pay them great attention due to deference prescribed by Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). See, e.g., Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62, 93 (D. Conn. 2010) (“[T]here seems to be little question that this court should defer to [the OCR letters] insofar as they represent OCR's interpretation of its own regulations.”).

6 Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686 (2006).

7 See id. § 1681 (“No person in the United States shall, on the basis of sex, be...subjected to discrimination under any education program or activity receiving Federal financial assistance ....”).

8 See, e.g., Luc Cohen, U. Redefines Sexual Misconduct, Daily Princetonian, Sept. 27, 2011, at 1 (discussing changes to the term “sexual assault” in Princeton University's sexual-misconduct policies); Michelle Davis, U.Va. Alters Rules for Sexual Misconduct, Cavalier Daily (Univ. of Va.), Aug. 20, 2011, at A1 (“The University [of Virginia] redefined the circumstances under which a student can raise sexual assault charges in July, altering its policy from one of ‘clear and convincing evidence’ to a broader standard in which an incident of sexual misconduct more likely than not occurred.”); Michael Goodrich, Op-Ed., Justice in the Academy, Chronicle (Duke Univ.), Sept. 7, 2011, at 11 (“[A]lleged violations of university policy that fall under Title IX ... will now be resolved using the preponderance of evidence standard ....” (quoting Stephen Bryan, Associate Dean of Students at Duke University) (internal quotation marks omitted)); Lee Shearer, UGA Toughens Sexual Harassment Policy, OnlineAthens (Sept. 16,

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2011), http:// www.onlineathens.com/stories/091611/uga_886443218.shtml (“The University of Georgia has adopted a new, tougher sexual harassment policy that for the first time explicitly defines sexual violence as a violation of UGA policy.”).

9 See, e.g., Peter Berkowitz, College Rape Accusations and the Presumption of Male Guilt, Wall St. J., Aug. 20, 2011, at A13 (“Most egregiously, OCR requires universities to render judgment using ‘a preponderance of the evidence’ standard.” (quoting Letter from Russlynn Ali, supra note 5, at 11)); Rick Hills, What Constitutes “Due Process” for the Accused in Universities' Hearings Dealing with Campus Rape?, PrawfsBlawg (Aug. 21, 2011), http://prawfsblawg.blogs.com/prawfsblawg/2011/08/what-constitutes-due-process- in-universities-campus-rape-adjudications.html (“But Peter [[Berkowitz] cannot be serious that all of the rights appropriate for a criminal case ... ought to be imported into an administrative hearing ....”); see also Criticisms of the Department of Education's April 4, 2011 “Dear Colleague Letter”, False Rape Soc'y, http:// falserapearchives.blogspot.com/2011/09/writings-demonstrating-error- and.html (last visited Sept. 25, 2012) (maintaining a list of links to documents that have disclaimed the Dear Colleague Letter).

10 Berkowitz, supra note 9; see also Anonymous, An Open Letter to OCR, Inside Higher Ed (Oct. 28, 2011), http:// www.insidehighered.com/views/2011/10/28/essay-ocr-guidelines-sexual-assault-hurt-colleges-and-students (telling the OCR that the Dear Colleague Letter went “too far”).

11 E.g., NCHERM Partners, NCHERM Reaction to the OCR Title IX Dear Colleague Letter on Campus Sexual Assault, Riskmablog (Apr. 6, 2011), http:// riskmablog.blogspot.com/2011/04/ncherm-reaction-to-ocr-title-ix-dear.html; see also, e.g., Donna Bickford, Brenda Betham, Michelle Issadore & Michelle Kroner, Open Letter to Anonymous, Inside Higher Ed (Nov. 8, 2011), http:// www.insidehighered.com/views/2011/11/08/essay-defending-ocr-letter-colleges-and-sexual-assault (“We would argue that the OCR guidelines, while not perfect, instead provide valuable guidance to campuses looking to support all their students equitably.”); Erin Buzuvis, OCR “Dear Colleague” Letter Addresses Sexual Harassment in Schools, Title IX Blog (Apr. 6, 2011), http:// title-ix.blogspot.com/2011/04/ocr-dear-colleague-letter-addresses.html (describing the Dear Colleague Letter as a “much-needed reminder” of Title IX's requirements).

12 See supra note 4 and accompanying text; see also infra Part I.B.

13 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (2006 & Supp. IV 2011).

14 The Supreme Court recognizes a special interest in protecting consumers when information about their desired product is not readily available. See, e.g., Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (“Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal.” (citation omitted)); In re R.M.J., 455 U.S. 191, 202 (1981) ( “The public's comparative lack of knowledge ... renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling.”).

15 See supra note 9 and accompanying text.

16 Although the term “sexual assault” captures a range of behavior, this Note focuses on standards for the severest forms of assault, such as completed or attempted rape, in which the parties' interests are greatest. The term “sexual assault” is used throughout this Note to reference such conduct.

17 See Letter from Russlynn Ali, supra note 5, at 2 (“This letter ... discuss[es] the proactive efforts schools can take to prevent sexual harassment and violence ....” (emphasis added)).

18 See id. at 9-10 (“Police investigations may be useful for fact gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX.”).

19 See, e.g., Disciplinary Procedures, Office of Student Life, Davidson Coll., http://www3.davidson.edu/cms/x8912.xml (last visited Sept. 25, 2012) (outlining the student disciplinary process, as enforced by the Dean of Students); Overview of Process, Ctr. for Student Conduct, Univ. of Cal., Berkeley, http://campuslife.berkeley.edu/conduct/process (last visited Sept. 25, 2012) (summarizing the process “used to determine if a student...engaged in behavior that violates the Code of Student Conduct,” as administered by the Dean of Students).

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20 See infra Part I.B.

21 See, e.g., Disciplinary Matters, Admin. Bd., Harvard Coll., http:// www.adboard.fas.harvard.edu/icb/icb.do? keyword=k62415&tabgroupid=icb.tabgroup88722 (last visited Sept. 25, 2012) (“As a first step in the Board review process students will be informed of the allegations by the Secretary of the Board ....”); Disciplinary Procedures, supra note 19 (“[The formal statement of charges] is to be served on the person charged promptly ....”); Overview of Process, supra note 19 (“[W]e inform the student of [a report of misconduct] and ask the student to schedule a meeting to discuss the incident.”).

22 See, e.g., Disciplinary Procedures, supra note 19 (stating that the Secretary of the Honor Council schedules disciplinary hearings); Overview of Process, supra note 19 (“If the student ... prefers to have a hearing ... the case will be forwarded to a hearing.”). But see Disciplinary Matters: Responding to an Allegation Made Against You in a Peer Dispute Case, Admin. Bd., Harvard Coll., http:// isites.harvard.edu/icb/icb.do? keyword=k62415&pageid=icb.page290403 (last visited Sept. 25, 2012) (discussing an adjudication process that is conducted via written reports).

23 See Disciplinary Procedures, supra note 19 (“The [Sexual Misconduct] Board's purpose is to hear cases which include allegations of Sexual Misconduct. The Board is charged with determining whether the Accused is responsible or not responsible for the alleged conduct and determining appropriate sanctions.”).

24 E.g., id.; see also, e.g., Overview of Process, supra note 19 (“Appeals may be made in writing to the Vice Chancellor for Student Affairs and must be based on new information not available at the time of the hearing, significant procedural error, or other good cause.”); Reconsideration and Appeals Process, Admin. Bd., Harvard Coll., http:// isites.harvard.edu/fs/docs/icb.topic601968.files/ Reconsideration%20Appeals% 20Flowchart.pdf (last visited Sept. 25, 2012) (outlining the appeals process).

25 See infra Part I.B.2.

26 See supra note 7.

27 Goodman v. President & Trs. of Bowdoin Coll., 135 F. Supp. 2d 40, 54, 58 (D. Me. 2001) (“[A] number of opinions by the Court of Appeals for the First Circuit and other courts within this circuit have endorsed the existence of a contractual relationship between students and colleges .... [T]he Court holds that [the student] Plaintiff's contractual relationship with Bowdoin includes the Handbook term promising that Bowdoin would abide by certain procedures to ensure impartial proceedings and fundamental fairness.”).

28 Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 157-59 (5th Cir. 1961) (holding that college students at public universities have due- process rights in disciplinary proceedings).

29 See infra Part I.B.3. In addition to these laws, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f) (2006 & Supp. IV 2011), is implicated by peer sexual assault and requires institutions to maintain and report aggregate assault data. This Note does not address the Clery Act, because it does not alter the way in which individual judicial proceedings are governed.

30 Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235 (codified as amended in scattered sections of 7, 12, 20, 29, and 42 U.S.C. (2006 & Supp. IV 2011)).

31 Title IX of the Education Amendments of 1972, Pub. L. No. 92-318, tit. IX, 86 Stat. 373 (codified as amended at 20 U.S.C. §§ 1681-1686 (2006)).

32 Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VI, 78 Stat. 2252 (codified as amended at 42 U.S.C. §§ 2000d to 2000d-4a (2006)) (prohibiting discrimination by institutions that receive federal funds).

33 See generally Klinton W. Alexander & Kern Alexander, Higher Education Law: Policy and Perspectives 484-503 (2011) (explaining the importance of Title IX and other laws in the context of federal prohibitions on sex discrimination in higher education).

34 20 U.S.C. § 1681(a) (2006).

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35 See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, sec. 3(a), § 908, 102 Stat. 28, 28 (1988) (codified as amended at 20 U.S.C. § 1687 (2006)) (“For the purposes of this title, the term ‘program or activity’ and ‘program’ mean all of the operations of ... a college, university, or other postsecondary institution ....”).

36 David S. Cohen, Title IX: Beyond Equal Protection, 28 Harv. J.L. & Gender 217, 243 (2005); see also, e.g., Cohen v. Brown Univ., 101 F.3d 155, 187-88 (1st Cir. 1996) (applying Title IX's requirements to a private university's athletics program).

37 Alexander & Alexander, supra note 33, at 501.

38 See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 527-28 (1982) (explaining that Title IX “originated as a floor amendment, [and that] no committee report discusses the provisions”); Diane Heckman, Women & Athletics: A Twenty Year Retrospective on Title IX, 9 U. Miami Ent. & Sports L. Rev. 1, 9 n.30 (1992) (“Title IX was adopted without formal hearings ....”).

39 See North Haven Bd. of Ed., 456 U.S. at 528 (explaining that Title IX was seen by some as a “cut and paste job” of Title VI (quoting Sex Discrimination Regulations: Hearings Before the Subcomm. on Postsecondary Educ. of the H. Comm. on Educ. & Labor, 94th Cong. 409 (1975) (statement of Rep. James G. O'Hara, Chairman, Subcomm. on Postsecondary Education))).

40 See 34 C.F.R. §§ 106.21-106.23, 106.37 (2012) (regulating sex discrimination in college admissions, recruitment, and financial aid). But see David S. Cohen, The Stubborn Persistence of Sex Segregation, 20 Colum. J. Gender & L. 51, 89-90 (2011) (outlining exceptions to Title IX's prohibition on sex discrimination in educational admissions).

41 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).

42 See generally Equity in Athletics, Inc. v. U.S. Dep't of Educ., 291 Fed. App'x. 517 (4th Cir. 2008) (discussing the promulgation of regulations by the Secretary of Health, Education, and Welfare that extend the applicability of Title IX to intercollegiate athletic activities); Favia v. Ind. Univ. of Pa., 7 F.3d 332 (3d Cir. 1993) (affirming a preliminary injunction that compelled a university to reinstate athletics programs that had been cut in violation of Title IX); Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993) (applying regulations that implement the intercollegiate athletics provisions of Title IX to a suit brought by members of women's sports teams that had been dropped to intercollegiate club status).

43 Title IX and Sex Discrimination, Office for Civil Rights, U.S. Dep't of Educ., http://www2.ed.gov/about/offices/list/ocr/docs/ tix_dis.html (last updated June 18, 2012); see also 34 C.F.R. § 106.3(a) (2012) (“If the Assistant Secretary [for Civil Rights] finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the Assistant Secretary deems necessary to overcome the effects of such discrimination.”).

44 See generally 34 C.F.R. §§ 106.1-106.71 (regulating sex discrimination in higher education pursuant to Title IX).

45 See Reading Room, Office for Civil Rights, U.S. Dep't of Educ., http://www2.ed.gov/about/offices/list/ocr/publications.html#General (last visited Sept. 25, 2012) (listing and providing electronic access to dear colleague letters and other official documents promulgated by the OCR).

46 See, e.g., Biediger v. Quinnipiac Univ., 728 F. Supp. 2d 62, 92 (D. Conn. 2010) (explaining that courts are “bound to defer to OCR's interpretation of Title IX” in a dear colleague letter and that OCR regulations are “owed ‘particularly high deference’ under the doctrine of Chevron” (quoting McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 288 (2d Cir. 2004))).

47 See, e.g., Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999) (concluding that “deliberate indifference to known acts of harassment ... amounts to an intentional violation of Title IX”).

48 See e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91 (1998) (“[W]e hold that a damages remedy will not lie under Title IX unless an official who ... has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination ... and fails adequately to respond. We think, moreover, that the response must amount to deliberate indifference to discrimination.”); see also Simpson v. Univ. of Colo., 371 F. Supp. 2d 1229 (D. Colo. 2005) (granting summary judgment for the defendant university in a claim for money damages and injunctive relief brought by two students who alleged being sexually assaulted by the members and recruits of the university's football team), rev'd, 500 F.3d 1170

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(10th Cir. 2007); Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007) (reversing the lower court's grant of summary judgment based in part upon the deliberate-indifference theory).

49 Gebser, 524 U.S. at 290.

50 See, e.g., Simpson, 500 F.3d at 1173 (permitting female university students to proceed in their Title IX claims); Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007) (permitting a rape victim's Title IX suit for damages against her former university to proceed); see also Doe v. Univ. of the Pac., No. CIV. S-09-764 FCD/JKN, 2010 WL 5135360, at *18 (E.D. Cal. Dec. 8, 2010) (granting summary judgment for the defendant university in a lawsuit brought by a female student, an assault victim who alleged that the university violated Title IX and created a hostile environment, even though it employed various tools to protect her interests).

51 In addition, the implications of Title IX liability are substantial and may extend beyond the courtroom. In Williams v. Board of Regents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007), a female student alleged that the institution had violated Title IX by failing to respond adequately to her report that she was gang raped by three student athletes, id. at 1288-90. The Eleventh Circuit held that the victim had presented an actionable complaint when she demonstrated that the institution recruited the ringleader of the assault with knowledge of his history of sexual violence, failed to supervise the ringleader properly while he was living in student-housing facilities, waited approximately eleven months after the event to conduct a disciplinary hearing, and failed to take precautions that would prevent future attacks. Id. at 1296-97. The suit received significant press coverage, which depicted the university in a negative light, and contributed to the early termination of the university's men's basketball season in 2003. Appeals Court Partly Revives Sex-Harassment Claim Against U. of Georgia, Chron. Higher Educ. (Feb. 12, 2007), http://chronicle.com/ article/Appeals-Court-Partly-Revive/38209.

52 See Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988) (“As early as Magna Carta, procedure was regarded as a valuable means for the protection of the rights of litigants.... Few principles of law, applicable as well to the administrative process, are as fundamental or well established ....”).

53 U.S. Const. amend. VI.

54 See Addington v. Texas, 441 U.S. 418, 423-24 (1979) (“In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of the accused beyond a reasonable doubt.”).

55 See, e.g., Valente v. Univ. of Dayton Sch. of Law, No. 3:07-cv-473, 2008 WL 343112 (S.D. Ohio Feb. 6, 2008) (rejecting the plaintiff's desired due-process requirements for an honor-code proceeding, such as a voir dire process and the right to a unanimous jury finding, and explaining that such rights were unique to the criminal context).

56 See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”).

57 See Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 156-57 (5th Cir. 1961) (noting that public universities cannot arbitrarily take action that would negatively impact the private interests of students and instead must have clear processes and procedures).

58 See Psi Upsilon of Phila. v. Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. Ct. 1991) (“The only caveat applied to this principle [that students at private institutions are protected by contractual provisions] is that the disciplinary procedures established by the institution must be fundamentally fair.”).

59 See infra notes 84-85 and accompanying text. This Note refers to such claims as “contractual due-process claims.”

60 Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961).

61 Id. at 150-55.

62 Id. at 156. The court elaborated:

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It is not enough to say, as did the district court in the present case, “The right to attend a public college or university is not in and of itself a constitutional right.” That argument was emphatically answered by the Supreme Court in [Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886 (1961)], when it said that the question of whether “... summarily denying [plaintiff] access to the site of her former employment violated the requirements of the Due Process Clause of the Fifth Amendment ... cannot be answered by easy assertion that, because she had no constitutional right to be there in the first place, she was not deprived of liberty or property by the Superintendent's action. ‘One may not have a constitutional right to go to Bagdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.”’ Dixon, 294 F.2d at 156 (second and fourth alterations in original) (citations omitted) (quoting Dixon v. Ala. State Bd. of Educ., 186 F. Supp. 945, 950 (M.D. Ala. 1960), rev'd, 294 F.2d 150 (5th Cir. 1961); and Cafeteria Workers, 367 U.S. at 894).

63 Dixon, 294 F.2d at 156-57.

64 Courts, including the Supreme Court, have viewed Dixon as establishing that students enrolled at public institutions of higher education have constitutionally protected procedural due-process rights that must be observed before they may be suspended or expelled. See, e.g., Goss v. Lopez, 419 U.S. 565, 576 n.8 (1975) (“Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion.” (citations omitted)); Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988) (“[A] student facing expulsion or suspension from a public educational institution is entitled to the protections of due process.” (citing Dixon, 294 F.2d at 157)); Nash v. Auburn Univ., 812 F.2d 655, 660 (11th Cir. 1987) (“In Dixon v. Alabama State Board of Education, we broadly defined the notice and hearing required in cases of student expulsion from college ....” (citations omitted)). In Goss v. Lopez, 419 U.S. 565 (1975), however, the Supreme Court held that public elementary-school students facing suspensions of ten days were entitled to procedural due-process protections because the state of Ohio had statutorily granted a right to such education, id. at 573-74. Therefore, the Court relied on the fact that the state had granted a right, rather than a privilege, as the basis for holding that such a right deserved due-process protections. Id. Notwithstanding this important distinction, since Dixon and Goss, courts have been comfortable with the premise that students at public colleges are generally entitled to due process in disciplinary procedures. See, e.g., Terrell v. Del. State Univ., No. 09-464 (GMS), 2010 WL 2952221, at *4 (D. Del. 2010) (discussing both Goss and Dixon as the basis of procedural due process for accused students in college adjudicatory settings); Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1247-49 (E.D. Mich. 1984) (same); Donohue v. Baker, 976 F. Supp. 136, 145 (N.D.N.Y. 1997) (discussing Goss and explaining that public-college students are entitled to procedural due-process protections).

65 Goss v. Lopez, 419 U.S. 565 (1975).

66 Id. at 576 n.8. The Court drew an important distinction three years later, however, in Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978). There, the Court explained that “[t]he need for flexibility is well illustrated by the significant difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct. This difference calls for far less stringent procedural requirements in the case of an academic dismissal.” Id. at 86. Therefore, “because the academic process is not adversarial, dismissals for academic reasons do not require a formal notice and hearing.” Furey v. Temple Univ., 730 F. Supp. 2d 380, 393 (E.D. Pa. 2010) (citing Horowitz, 435 U.S. at 86).

67 See, e.g., Danso v. Univ. of Conn., 919 A.2d 1100, 1106 (Conn. Super. Ct. 2007) (“It is doubtful that a college student attending a state university has a valid property interest in staying in school.... [H]owever, [[such] a student ... has a liberty interest in continuing that education.”).

68 See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“Once it is determined that due process applies, the question remains what process is due.”).

69 See Goss, 419 U.S. at 577-78 (“We turn to that question [of what process is due], fully realizing as our cases regularly do that the interpretation and application of the Due Process Clause are intensely practical matters and that ‘[t]he very nature of due process negates any concept of inflexible procedures universally applicable ....”’ (first alteration in original) (citations omitted) (quoting Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895 (1961))).

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70 See Alexander & Alexander, supra note 33, at 155-57 (explaining that the student-university legal relationship has been interpreted using five different frameworks, including that of a contractual relationship and a fiduciary relationship); see also Alvin L. Goldman, The University and the Liberty of Its Students--A Fiduciary Theory, 54 Ky. L.J. 643, 674 (1966) (“[T] he university, like any fiduciary, ... should have the burden of demonstrating that any disciplinary action: (a) was reasonably imposed for cause consistent with its function of maintaining an open-minded atmosphere ... for freely inquiring into and exploring ideas; and (b) was imposed in a manner consistent with scholarly integrity and process.”).

71 Donohue v. Baker, 976 F. Supp. 136 (N.D.N.Y. 1997).

72 Id. at 145-47.

73 See id. at 147 (“Regardless of how ‘sensitive’ the proceeding was deemed to be, the defendants remained bound to observe the plaintiff's constitutional rights.”).

74 See, e.g., Thomas R. Baker, Cross-Examination of Witnesses in College Student Disciplinary Hearings: A New York Case Rekindles an Old Controversy, 142 Educ. L. Rep. 11, 11 (2000) (“Prior to 1997, no federal judge had reinstated a post-secondary student ... solely because the university[[] ... did not permit the student to cross-examine witnesses.”).

75 Danso v. Univ. of Conn., 919 A.2d 1100, 1108 (Conn. Super. Ct. 2007) (“Due process...does not require that a student ... be afforded a right to cross-examine witnesses....”).

76 Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir. 1988) (explaining that unspecified limitations on an accused student's ability to conduct cross-examination were insufficient to create due-process concerns, in part because the ability to conduct expansive cross- examination has not been deemed a right for accused students).

77 See Baker, supra note 74, at 11 (“Although only a district court ruling, the significance of Donohue for practitioners was considerable.”).

78 Donohue, 976 F. Supp. at 146.

79 Danso v. Univ. of Conn., 919 A.2d 1100 (Conn. Super. Ct. 2007).

80 Id. at 1110.

81 Furey v. Temple Univ., 730 F. Supp. 2d 380 (E.D. Pa. 2010).

82 Id. at 397-98.

83 In fact, Dixon explained that “the well-settled rule that the relations between a student and a private university are a matter of contract.” Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961); see also, Psi Upsilon of Phila. v. Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. Ct. 1991) (“In the university context due process is defined according to whether the institution is public or private.... The law ... at private [[institutions] ... is not so well settled.... [S]tudents who are being disciplined are entitled only to those procedural safeguards which the school specifically provides.” (emphasis omitted) (quoting Boehm v. Univ. of Pa. Sch. of Veterinary Med., 573 A.2d 575, 579 (Pa. Super. Ct. 1990))).

84 See, e.g., Cloud v. Trs. of Bos. Univ., 720 F.2d 721, 724 (1st Cir. 1983) (“Since [the student's] claim is based on his contract with the university, [state] law governs ....”); Goodman v. President & Trs. of Bowdoin Coll., 135 F. Supp. 2d 40, 45 (D. Me. 2001) (“Plaintiff alleges breach of contract against Defendant Bowdoin College on the grounds that the college breached the promises set forth in its Student Handbook ....”).

85 Psi Upsilon, 591 A.2d at 758.

86 Cloud v. Trs. of Bos. Univ., 720 F.2d 721 (1st Cir. 1983).

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87 Id. at 724-25 (first and second alterations in original) (quoting Coveney v. President & Trs. of Holy Cross Coll., 445 N.E.2d 136, 139 (Mass. 1983)).

88 Id. at 723-26.

89 Id. at 723 (quoting the student handbook).

90 Jansen v. Emory Univ., 440 F. Supp. 1060 (N.D. Ga. 1977).

91 Id. at 1063 (“Courts ... should not lightly undercut the ‘compelling need and very strong policy consideration in favor of giving ... school officials the widest possible latitude in the management of school affairs.’ Plaintiff is correct in observing that the traditional rule of nonintervention in academic matters does not apply to review of disciplinary actions by educational institutions.... The mere fact that some of his grades were based on Honor Council violations does not render suspect or reviewable the decision of the faculty [to dismiss him from the program].” (second alteration in original) (citations omitted) (quoting Keys v. Sawyer, 353 F. Supp. 936, 940 (S.D. Tex. 1973))). Jansen involved a dental student at Emory University who was dismissed from the program for poor academic performance after he received two failing grades for disciplinary problems. Id. at 1061, 1063. Despite a provision in the student handbook that provided that “no student will be dismissed without due process,” the student was dismissed at a faculty meeting to which the student was not invited. Id. at 1062.

92 See supra note 66.

93 Jansen, 440 F. Supp. at 1061, 1063.

94 Id.

95 Corso v. Creighton Univ., 731 F.2d 529 (8th Cir. 1984).

96 Id. at 533. In both Jansen and Corso, students faced sanctions for cheating. In Jansen, the court refused to address the student's due- process concerns because it viewed the sanctions as “academic” rather than “disciplinary.” Jansen, 440 F. Supp. at 1063. But in Corso, the court found the institution liable, implicitly refusing to apply the distinction between academic and disciplinary matters. Corso, 731 F.2d at 533. Numerous other examples of such inconsistencies exist. For example, compare the approach to contractual interpretation in Psi Upsilon of Philadelphia v. University of Pennsylvania, 591 A.2d 755 (Pa. Super. Ct. 1991), with Goodman v. President and Trustees of Bowdoin College, 135 F. Supp. 2d 40 (D. Me. 2001). In Psi Upsilon, the Superior Court of Pennsylvania held that a fraternity's contract with the university, in which the fraternity agreed “[t]o accept collective responsibility for the activities of the individual members,” was neither overbroad nor vague. Psi Upsilon, 591 A.2d at 759 (emphasis omitted) (quoting university policies and procedures). In Goodman, however, the court was more willing to engage in loose contractual interpretation. In that case, the plaintiff alleged that he had been denied contractual due-process rights when he was prevented from obtaining access to medical records and contacting a witness to an alleged fight. Goodman, 135 F. Supp. 2d at 44. The student handbook stated that the institution reserved “the right to make changes in...procedures, and charges,” but the court limited this provision and prevented a change in policy during the procedures. Id. at 57 (quoting Bowdoin's 1998-1999 Student Handbook) (internal quotation marks omitted).

97 See supra notes 71-77 and accompanying text.

98 20 U.S.C. § 1232g(a) (2006); see also Katrina Chapman, Note, A Preventable Tragedy at Virginia Tech: Why Confusion over FERPA's Provisions Prevents Schools from Addressing Student Violence, 18 B.U. Pub. Int. L.J. 349, 353-54 (2009) (“FERPA requires that student records be kept confidential. It provides access ... only with the consent of parents ....”).

99 20 U.S.C. § 1232g(a)(4)(A)(1).

100 Id. § 1232g(b)(1) (2006 & Supp. IV 2011).

101 Letter from Russlynn Ali, supra note 5, at 11 n.29.

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102 Office for Civil Rights, U.S. Dep't of Educ., Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, at vi-vii (2001), available at http:// www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf (“[C]ommenters raised concerns about the interrelation of [FERPA] and Title IX. The concerns relate to two issues: (1) the harassed student's right to information about the outcome of a sexual harassment complaint and (2) the due process rights of individuals...accused of sexual harassment ....”).

103 See, e.g., Chapman, supra note 98, at 352 (“FERPA still does not adequately define when an emergency exists ....”); Stephanie Humphries, Note, Institutions of Higher Education, Safety Swords, and Privacy Shields: Reconciling FERPA and the Common Law, 35 J.C. & U.L. 145, 149 (2008) (“[B]oth FERPA and the common law contain internal tensions regarding safety and privacy that neither Congress nor the courts have adequately reconciled ....”).

104 See supra Part I.B.1.

105 See, e.g., Doe v. Univ. of the South, No. 4:09-cv-62, 2011 WL 1258104, at *22 (E.D. Tenn. Mar. 31, 2011) (allowing a student's breach-of-contract claim to proceed under the theory that the university deprived him of due process). The jury eventually awarded the student over $20,000 in compensatory damages. Collin Eaton, Jury Verdict in Sex-Assault Case at Sewanee Sends Warning to Private Colleges, Chron. Higher Educ. (Sept. 2, 2011), http:// chronicle.com/article/Jury-Verdict-in-Sex-Assault/128884; see also Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1294-99 (11th Cir. 2007) (holding that an adequate Title IX claim had been mounted against the University of Georgia by a former student and rape victim).

106 See supra Part I.B.3.

107 For example, the standard of proof in student disciplinary hearings has historically varied wildly across institutions. Compare Margaret Fosmoe, ND To Change Sex Assault Response, South Bend Trib., July 2, 2011, at A1 (“Notre Dame agreed to make clear that it will use a ‘preponderance of evidence’ standard to evaluate sexual harassment allegations.”), with Rebecca D. Robbins, Harvard Will Not Alter Its Sexual Assault Policies in Response to Yale, Harvard Crimson (June 27, 2012), http://www.thecrimson.com/ article/2012/6/27/sexual-assault-no-response (detailing differing standards of proof at different Harvard schools), and Davis, supra note 8 (explaining that the University of Virginia altered “its policy from one of ‘clear and convincing evidence”’ to a preponderance standard).

108 In fact, Vice President Joseph Biden and Education Secretary Arne Duncan took the unusual step of publically announcing the Dear Colleague Letter's release at a media event at the University of New Hampshire. Lauren Sieben, Education Dept. Issues New Guidance for Sexual-Assault Investigations, Chron. Higher Educ., Apr. 4, 2011, at A20. The Dear Colleague Letter's author, DOE Assistant Secretary for Civil Rights Russlynn Ali, described the letter as “historic,” emphasizing that it is not an attempt to alter the law, but rather serves as a “clarification” of existing law. Allie Grasgreen, Call to Action on Sexual Harassment, Inside Higher Ed (Apr. 4, 2011, 3:00 AM), http:// www.insidehighered.com/news/2011/04/04/education_department_civil_rights_ office_clarifies_colleges_sexual_harassment_obligations_title_ix (quoting Ali) (internal quotation marks omitted).

109 Letter from Russlynn Ali, supra note 5, at 1-3.

110 Id. at 3-14.

111 Id. at 14-19.

112 See id. at 2 (“This letter supplements the 2001 Guidance,[[ Office for Civil Rights, supra note 102,] by providing additional guidance ... regarding the Title IX requirements as they relate to sexual violence.”); see also Office for Civil Rights, supra note 102, at 1 (“[W]e intend th[is] revised guidance to serve the same purpose as the 1997 guidance. It continues to provide the principles that a school should use to recognize and effectively respond to sexual harassment of students in its program as a condition of receiving Federal financial assistance.”).

113 This is not to suggest that the OCR should not be concerned with protecting victims of assault. Rather, the OCR should more effectively address both students' interests. For institutions to be able to provide maximum protections against peer sexual assault,

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institutions must first know the limits of due-process requirements. Therefore, the OCR should provide more guidance as a means of enabling institutions to fully comply with Title IX.

114 Letter from Russlynn Ali, supra note 5, at 8-14.

115 Id. at 11.

116 Id.

117 Id. at 10.

118 See, e.g., Berkowitz, supra note 9 (“Most egregiously, OCR requires universities to render judgment using ‘a preponderance of the evidence’ standard.”). But see Stacy Malone, Victim Rights Law Center Responds to Wall Street Journal Editorial, Victim Rights Law Ctr. (Aug. 31, 2011), http:// www.victimrights.org/sexual-assault-happens-college-campuses-stop-blaming-victims-and-hold- perpetrators-accountable (“Mr. Berkowitz ... confuses the civil and criminal laws when he criticizes the burden of proof ....”).

119 See Grasgreen, supra note 108 (“In the press call, Ali stressed the importance of clarifying the standard of proof for sexual harassment.”).

120 Id.

121 Letter from Russlynn Ali, supra note 5, at 13.

122 Id. at 11 & n.29.

123 Id. at 11 n.29.

124 Id. at 13-14.

125 Id.

126 Id. at 13.

127 Id. at 5.

128 Id.

129 Id.

130 Id.

131 Id. (quoting 20 U.S.C. § 1232g (2006 & Supp. IV 2011)).

132 Id. at 12.

133 Id.

134 Id.

135 Id.

136 Id. at 3.

137 Id. at 12.

138 See supra note 72 and accompanying text.

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139 For example, despite the consistency advocated by the OCR's insistence on a uniform standard of proof, some institutions are refusing to follow suit. E.g., Robbins, supra note 107. Other variations also persist. For instance, Davidson College dispatches an independent, neutral investigator to conduct an initial investigation of all claims of assault, Disciplinary Procedures, supra note 19, while the University of California at Berkeley employs no such preliminary investigations and merely directs an initial meeting with the accused to discuss the charges, see Overview of Process, supra note 19.

140 See 34 C.F.R. § 106.3(a) (2012) (“If the Assistant Secretary [[for Civil Rights] finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the Assistant Secretary deems necessary to overcome the effects of such discrimination.”).

141 See Letter from Russlynn Ali, supra note 5, at 12 (“Public and state-sponsored schools must provide due process to the alleged perpetrator.”); see also Goss v. Lopez, 419 U.S. 565, 576 n.8 (1975) (explaining that, since Dixon, due process is required before a student may be disciplined by a public-education institution).

142 Although empowering the OCR to craft a model policy would admittedly increase the DOE's role, such a role is warranted due to the interest of balancing due process with victim protection and the need for greater consistency and clarity.

143 Mathews v. Eldridge, 424 U.S. 319 (1976) (involving a dispute regarding the constitutionality of administrative proceedings under the Due Process Clause).

144 Mathews v. Eldridge, 424 U.S. 319 (1976).

145 Id. at 335.

146 Danso v. Univ. of Conn., 919 A.2d 1100, 1106 (Conn. Super. Ct. 2007).

147 See, e.g., Byron Calame, Revisiting The Times's Coverage of the Duke Rape Case, N.Y. Times, Apr. 22, 2007, at C12 (analyzing the extensive media scrutiny surrounding the Duke lacrosse scandal).

148 Doe v. Univ. of the Pac., No. 4:09-cv-62, 2010 WL 5135360 (E.D. Cal. Mar. 31, 2010); see also Eisen, supra note 2 (describing the alleged University of the Pacific gang rape).

149 E.g., Georgina Gustin, Rape of Student at Blackburn Rattles Campus, St. Louis Post-Dispatch, Sept. 24, 2004, at B06 (“A sexual assault on the quiet campus of Blackburn College in Carlinville last week has rattled students ....”); Sexual Assault Workshop, Wash. Post, June 30, 1991, at D11A (“[The College of William and Mary] was embroiled in controversy this school year after a freshman complained she was the victim of date rape.”).

150 Mathews, 424 U.S. at 343-44.

151 Id. at 341.

152 Id. at 347-48.

153 See, e.g., Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961) (“This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college's educational atmosphere and impractical to carry out.”).

154 See, e.g., Baker, supra note 74, at 23 (“[I]n this setting, the opportunity to cross-examine the alleged offender is not likely to encourage prospective complainants to undertake the personal risks associated with filing a formal complaint, and the traumatic side-effects of cross-examination ordinarily impact the alleged victims much more negatively than the alleged offenders.”).

155 See, e.g., Disciplinary Procedures, supra note 19 (“The Honor Council is composed of thirty students ... elected at large from the student body.”).

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156 Indeed, in some instances, the use of student judicial officers may actually exacerbate the concern of undue embarrassment for the victim, insofar as students will be hesitant to subject themselves to an investigative proceeding in front of their peers and classmates.

157 For a list of these institutions, as measured in 2012 by the U.S. News and World Report, see National University Rankings, U.S. News & World Rep., http://colleges.usnews.rankingsandreviews.com/best-colleges/rankings/national-universities (last visited Sept. 25, 2012).

158 See, e.g., Mission Statement, Univ. of Cal., http:// www.universityofcalifornia.edu/aboutuc/missionstatement.html (last updated Jan. 26, 2004) (“The distinctive mission of the University is to serve society as a center of higher learning, providing long-term societal benefits through transmitting advanced knowledge, discovering new knowledge, and functioning as an active working repository of organized knowledge.” (quoting the 1974-78 University of California Academic Plan) (internal quotation mark omitted)); University Mission Statement, Yale Univ., http:// www.yale.edu/about/mission.html (last visited Sept. 25, 2012) (“Like all great research universities, Yale has a tripartite mission: to create, preserve, and disseminate knowledge.”).

159 See Goldman, supra note 70, at 674 (“[T]he university, like any fiduciary, ... should have the burden of demonstrating that any disciplinary action: (a) was reasonably imposed for cause consistent with its function of maintaining an open-minded atmosphere conducive to the acquisition and use of tools for freely inquiring into and exploring ideas; and (b) was imposed in a manner consistent with scholarly integrity and process.”).

160 See, e.g., Rice Univ., Student Handbook--Sexual Assault/Misconduct, http://www.students.rice.edu/students/ sexual_AssaultMisconduct.asp (last visited Sept. 25, 2012) (“The University will assist students who request assistance in rearranging their classes or living arrangement because of an alleged sexual assault.”).

161 See supra notes 147-149 and accompanying text.

162 See supra note 9 and accompanying text.

163 See supra note 9 and accompanying text.

164 See Letter from Russlynn Ali, supra note 5, at 11 n.28.

165 Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961); Letter from Russlynn Ali, supra note 5, at 9-10.

166 Alexander & Alexander, supra note 33, at 155-57.

167 Robert Smith, On Sexual Harassment and Title IX, Real Clear Politics (Aug. 30, 2011), http:// www.realclearpolitics.com/ articles/2011/08/30/on_sexual_harassment_and_title_ ix_111065.html.

168 It should be recalled, of course, that this lower standard of proof is appropriate only within the institutional disciplinary process. Any criminal proceeding would involve the familiar beyond-a-reasonable-doubt standard. See supra Part I.A.

169 See supra notes 48-50 and accompanying text.

170 See supra notes 145-151 and accompanying text.

171 Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)).

172 Id. at 424.

173 Id.

174 See supra notes 8, 107 and accompanying text.

175 Grogan v. Garner, 498 U.S. 279, 286 (1991) (citing Herman & MacLean v. Huddleston, 459 U.S. 375, 389-90 (1983)).

176 Addington, 441 U.S. at 424 (emphasis added).

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177 Id. at 423.

178 See supra notes 17-18 and accompanying text.

179 See, e.g., Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2320 (2009) (explaining in the context of a rape case that a criminal defendant is presumed innocent at trial and is entitled to the beyond-a-reasonable-doubt standard).

180 See, e.g., Woodby v. INS, 385 U.S. 276, 285-86 (1966) (“To be sure, a deportation proceeding is not a criminal prosecution. But it does not syllogistically follow that a person may be banished from this country upon no higher degree of proof than applies in a negligence case....In denaturalization cases the court has required the Government to establish its allegations by clear, unequivocal, and convincing evidence.” (citation omitted)); Chaunt v. United States, 364 U.S. 350, 353 (1960) (“[I]n view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside--the evidence must indeed be ‘clear, unequivocal, and convincing....”’ (quoting Schneiderman v. United States, 320 U.S. 118, 125 (1943))).

181 Woodby, 385 U.S. at 285-86.

182 See, e.g., Hodges v. United States, 35 Fed. Cl. 68, 78 (1996) (explaining that an administrative board employs a preponderance standard in a military-discharge case).

183 See supra note 67 and accompanying text.

184 See supra note 9.

185 Letter from Russlynn Ali, supra note 5, at 12.

186 See, e.g., Donohue v. Baker, 976 F. Supp. 136, 139-40 (N.D.N.Y. 1997) (“At the very least, in light of the disputed nature of the facts and the importance of witness credibility in this case, due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser ....”).

187 Id. at 146-47; see also supra notes 71-74 and accompanying text.

188 Donohue, 976 F. Supp. at 146-47.

189 See supra note 77 and accompanying text.

190 See supra note 4 and accompanying text.

191 Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961); Danso v. Univ. of Conn., 919 A.2d 1100, 1108 (Conn. Super. Ct. 2007); Baker, supra note 74, at 13-14 .

192 See supra note 153.

193 See Baker, supra note 74, at 23 (“Due to the highly personal nature of a rape charge and the emotional toll it exacts on the victim, no procedural design issue generates more administrative angst than cross-examination.”).

194 See supra notes 150-151 and accompanying text.

195 Donohue v. Baker, 976 F. Supp. 136, 147 (N.D.N.Y. 1997) (emphasis added). It is unclear whether OCR's ban on direct cross- examination, see supra note 134 and accompanying text, also prohibits this indirect cross-examination.

196 See, e.g., Doe v. Univ. of the Pac., No. Civ. S-09-764 FCD/KJN, 2010 WL 5135360, at *4 (E.D. Cal. Dec. 8, 2010) (“As an accommodation to [the victim], the University arranged for [her] to provide her testimony to the Board in a building across campus from where [the perpetrators] testified.”).

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197 See, e.g., Cloud v. Trs. of Bos. Univ., 720 F.2d 721 (1st Cir. 1983) (involving a judicial hearing in which the witness was shielded from the view of the accused student); Gomes v. Univ. of Me. Sys., 304 F. Supp. 2d 117, 129-30 (D. Me. 2004) (involving a hearing in which the witness was placed behind a screen and cross-examined out of view).

198 Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706 (2006).

199 See id. § 556(d) (“A party is entitled to present his case or defense ... and to conduct such cross-examination as may be required for a full and true disclosure of the facts.”); infra note 200.

200 In Doe v. United States, 132 F.3d 1430 (1997), the court reversed the decision of a military board to discharge an Air Force officer amid allegations that he had sexually molested his daughter, id. at 1437. The evidence against the officer consisted solely of recorded statements that his daughter had made to a third party, and the officer was unable to cross-examine this important witness. Id. at 1435-36. The court noted: Sexual molestation of a child, especially if committed by a child's own parent, is indeed heinous. But like other person-to-person offenses, whether the act in fact occurred, when there is no corroborating evidence, depends very much on the believability of the complaining witness. And though an administrative discharge proceeding is not held to the same high standard of proof as a criminal hearing, and hearsay evidence is not as tightly controlled as it is in civil court proceedings, nevertheless there remains a minimum level of proof that must be found in the record.... The greatest engine for truth, it has been written, is the opportunity to confront one's accusers and to cross-examine them. In administrative proceedings such as this, the rules are modified to permit agency processes that are less formal than those of a law court. But that does not authorize a gross departure from basic principles as has occurred in this case. Id. at 1436-37 (citations omitted).

201 See Richardson v. Perales, 402 U.S. 389, 402 (1971) (explaining the admissibility of hearsay in administrative hearings).

202 See, e.g., Cloud v. Trs. of Bos. Univ., 720 F.2d 721, 726 (1st Cir. 1983) (addressing the accused's complaints that he was not afforded access to relevant witnesses).

203 See, e.g., Danso v. Univ. of Conn., 919 A.2d 1100, 1108 (Super. Ct. Conn. 2007) (“Due process ... does not require that a student at a disciplinary hearing be afforded a right to...compel testimony.”).

204 See supra notes 154, 200 and accompanying text.

205 See supra Part I.B.3.

206 Danso, 919 A.2d at 1108.

207 Taylor v. Illinois, 484 U.S. 400, 425 (1988) (Brennan, J., dissenting).

208 Letter from Russlynn Ali, supra note 5, at 11 n.29.

209 This point should be somewhat axiomatic. First, the liberty interest at stake in disciplinary hearings is sufficient to warrant prior access to the facts. Second, without access to the factual evidence, the accused will be unable to mount an effective defense, dramatically increasing the risk of erroneous deprivation of liberty. Third, providing timely access to the accused will impose only minimal costs. This final point finds support in the Dear Colleague Letter itself. Id.

210 See Richardson v. Perales, 402 U.S. 389, 402 (1971) (explaining that hearsay evidence may be admissible in the administrative hearing context).

211 See, e.g., Donohue v. Baker, 975 F. Supp. 136, 147 (N.D.N.Y. 1991) (requiring cross-examination to be conducted through the institution's judicial panel); Cloud v. Trs. of Bos. Univ., 720 F.2d 721, 725 (1st Cir. 1983) (involving cross-examination conducted with the victim shielded from view).

212 Institutions already try carefully to manage future interactions between the alleged victim and the accused. See supra note 160. Not only are such efforts important for the prevention of future trauma to the alleged victim, but in some instances, the institution might

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even be legally obligated to ensure that the parties refrain from future conduct so as to avoid a “hostile environment.” Letter from Russlynn Ali, supra note 5, at 4, 13 n.33.

213 See supra note 132 and accompanying text.

214 See supra Part III.B.2.

215 See supra Part III.A.

216 See, e.g., Gomes v. Univ. of Me. Sys., 304 F. Supp. 2d 117 (D. Me. 2004) (involving a student represented by counsel).

217 See Donohue v. Baker, 976 F. Supp. 136, 145-47 (N.D.N.Y. 1997) (discussing a campus disciplinary proceeding in which the accused student was provided access to a student advocate); Danso v. Univ. of Conn., 919 A.2d 1100, 1109 (Conn. Super. Ct. 2007) (same).

218 Determining a party's ability to afford legal counsel will be a fact-based assessment made by a student-affairs office. Such a decision may require the student or his or her guardian to authorize the relevant official to consult the student's financial-aid profile.

219 Letter from Russlynn Ali, supra note 5, at 12. 62 DUKELJ 487

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 165 30 Can a survivor ﬁnd solace in return to scene of rape? - CNN.com http://www.cnn.com/2015/11/16/us/campus-rape-survivor-faces-ghos...



Ghosts of rape past: Can a survivor find solace in return to the crime scene?

By Moni Basu, CNN Photos by Lexey Swall for CNN

Updated 12:31 PM ET, Mon November 16, 2015

Tallahassee, Florida (CNN)—On game day, 70,000 football fans pack Doak Campbell Stadium to watch Florida State roar to victory. I wait for the post-party quiet of the following morning to wander through campus with Maria, knowing that a return to this place could be risky.

At the main entrance to the university, we run into two high school students from Tampa posing for a photo in garnet and gold Seminole jerseys. They want to enroll at FSU one day soon, they say, their cherubic faces lighting up.

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Maria was that way once: young and brimming with U.S. + hope, Liveexcited TV to start the U.S.adult Edition chapter +of her lifemenu at a How this story was reported prominent state university bustling with students from all over the globe. In the fall of 1987, her mother dropped her off in this very spot, in front of the administrative This narrative of a gang rape on the campus offices housed in Westcott Building. of Florida State University in 1988 was pieced together through hundreds of pages But college turned out to be a dark adventure. of documents and more than a dozen interviews. Before she could finish her second semester, Maria was gang-raped on campus. Her assault made national CNN reporter Moni Basu contacted the headlines partly because the details read like sleazy survivor of the rape through her former fiction and partly because it involved one of the most prestigious fraternities on a football powerhouse campus. attorney, Dean LeBoeuf. Then Basu began a series of conversations with her that It was a case I became intimately aware of as a journalist culminated in the survivor's return to the in Tallahassee at the time and one that I sympathized with FSU campus in Tallahassee for the ﬁrst time as a former FSU student and campus rape survivor. since the attack 27 years ago. I expect the return to FSU to be a difficult journey -- for Basu interviewed the district attorney who both Maria and me. It is the first trip back to campus for us since our departures from Tallahassee. In the years oversaw the case and an assistant district since, many things have changed at America's attorney who prosecuted it; the attorney for institutions of higher learning. Sadly, some have not. defendant Daniel Oltarsh, a Pi Kappa Alpha fraternity member who served time for the Rape on college campuses was a serious problem then rape; FSU professors; the lead police and remains one now. One in five college women said investigator; and the victim's counselor. they were sexually assaulted, according to a Washington Post-Kaiser Family Foundation poll released last June. Basu requested an interview with Oltarsh but his lawyer did not respond to follow-up It's a problem highlighted in the film "The Hunting calls. She also reached out to a fraternity Ground," which aired on CNN on November 22. The film brother who cooperated with the police in delves into a connection between alcohol and sexual exchange for immunity and to two other assault and explores a campus culture that protects fraternity members who were indicted. The perpetrators. attempts to reach them were not successful. It also focuses on the stories of survivors who became activists and took the issue all the way to the White Basu also examined hundreds of pages of House and prompted a federal investigation of the case ﬁles at the Leon County Courthouse in handling of sexual violence complaints on campuses. Tallahassee, including the grand jury report and the rape survivor's deposition, as well As the film demonstrates, the Internet and social media as archival material at FSU's Strozier Library. made it possible for rape survivors to connect with one another and find a modicum of comfort. Even power. When Maria and I were in college, that was not the case. We felt, and were, very much alone.

We both chose to keep silent about what happened, except in Maria's case, the crime was so heinous that despite her unwillingness, the state pursued charges against her rapists.

Maria felt a thousand eyes on her. She bore the brunt of unkind comments. She came back to her dorm room one day to find this message on the white board on her door: Whore. She withdrew, rarely spoke about the incident and even tried to kill herself. She survived through the years, but only barely.

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U.S. + Live TV U.S. Edition + menu We sat at a desktop computer in a sterile hotel lobby, sharing a pair of earbuds. I used the left one and she, the right. It was the first time I'd met Maria in person, though I had spoken with her once on the phone a few weeks after her rape.

Amid Spanish moss-draped oaks on FSU's campus, Maria took stock of her painful history as a young student on this campus

She watched the movie intently. I could see tears gathering behind her glasses and her hands trembling. A few weeks later, she agreed to go back with me to the scene of her attack. After 27 years, she was ready, she said, to come to terms with the incident that altered her life's trajectory.

I understood all too well the significance of her decision. I, too, had only recently gone public about my rape after a reporting trip to my native India to find a woman named Mathura, a rape survivor who was at the heart of a groundbreaking case.

I regretted that the newspaper stories I edited about Maria's rape had never given her voice. Throughout her ordeal and the months of court proceedings, she chose to remain anonymous. She was never named publicly and granted only a handful of interviews. The court records were sealed to protect her identity.

She agreed to speak with me on the condition that CNN not reveal her real name. She wanted to share her ordeal with other young women who have suffered rape or might be assaulted before they graduate.

"Maybe my story can help them in some way," she said.

On this Sunday morning in October, a warm sun illuminates her golden hair as we meander down asphalt paths that connect FSU's signature red brick buildings. I respect the courage it takes for her to stand with me

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U.S. + Live TV U.S. Edition + menu A little after 9, her smartphone lights up with a text from her boyfriend: "You've got this. I love you."

Maria sighs. She came here, she tells me, to face the ghosts that haunt her. She wants to take her 18-year-old self by the hand, lead her through the places that were dark and let her know: "It's going to be alright. You are safe."

A slideshow of chilling images

From the main entrance of the university, we walk to a campus hangout where both Maria and I spent hours studying, the Sweet Shop.

We take a break on Landis Green, the Central Park of FSU. Maria sits on a bench before live oaks laden with lacy Spanish moss that falls from the branches like tears. She hides her eyes behind Jackie O. sunglasses and takes slow drags of her Marlboro Menthol 100; I sense her anxiety as memories flood her mind.

We decide to retrace the steps Maria took on a damp spring night in 1988, past the blocks that once housed a newspaper office where I worked and a JR market that sold Texas taters and $1.99 six-packs of Schaefer beer. We stand before an all-new Dorman Hall, tonier than the version where Maria lived. From her room, she could see a row of sorority houses that included Chi Omega, where a few years before Maria arrived at FSU serial killer Ted Bundy murdered two young women.

We look the other way down Jefferson Street and recognize a motel-style apartment building with jalousie windows and air-conditioning units overworked even this far into autumn. We laugh that the ugliest building of all survived the bulldozers.

Around the corner is the place where Maria went on her last night of normal.

The Pi Kappa Alpha mansion with the stately white columns is no longer there, but Maria can picture it clearly in her mind. She points to the spot where she was tossed like a piece of trash, badly bruised and unconscious, just one drink away from death.

There's no clear storyline in her mind -- there wasn't then and there isn't now. She sees a slideshow of chilling images, blurry and yet so vivid at times that she can feel it all again.

Wine, a blue room, cold tiles, running water, flesh. And force. So much force.

Maria liked to drink and dance at an after-hours bottle club called the Late Night Library. On the evening of March 4, 1988, she was there with her friend Sandra. It was Friday, and the indie bar was hopping.

Maria arrived at FSU shy and introverted. Her mother was an alcoholic, and Maria had started drinking in her senior year at a girls-only Catholic high school in Louisiana. At FSU, she rebelled. She thought alcohol helped her feel more comfortable, and she developed a penchant for partying and a reputation for being promiscuous. She had already had many beers by the time she ran into Daniel Oltarsh, a political science and economics major she'd met at a pig roast several months before.

Oltarsh was handsome in a bookish way with blond curly locks and trendy round glasses that framed his blue eyes. Most of all, he was a Pike.

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U.S. + Live TV U.S. Edition + menu

At the time, Maria could not bear to look at the headlines about her rape. But friends saved newspaper clips for her to see later.

Many of the men of Pi Kappa Alpha were well-heeled sons of prominent fathers. They wore starched Oxford shirts, double-breasted blue blazers and Rolex watches. Around campus, many considered them the kings of FSU's Greek system, admired and reviled all at once.

Maria felt honored that someone like Oltarsh would talk to her. So when he invited her to a party that night at the Pike mansion, she was beside herself. She walked back to her dorm, changed into a three-quarter sleeve sweater and black pencil skirt and poured herself a tumbler of tequila. She took the drink with her on the short walk to the fraternity house at 218 S. Wildwood Drive.

Oltarsh was waiting for her on the columned porch. They went upstairs to his room. He managed to get a bottle of white wine and Maria drank more. It was past 3 in the morning.

"Where is the party?" Maria asked.

There was none.

The details of what happened next are culled from court files, including police interviews with Pi Kappa Alpha members and a grand jury report indicting 23-year-old Oltarsh and two other fraternity members: Byron Stewart, then 21, and Jason McPharlin, 18, who was visiting from Auburn University.

A fourth fraternity brother was given immunity in exchange for his cooperation with the investigation. The documents include his version of what happened as well as a statement from McPharlin.

Maria was so drunk she could barely stand up. She told police Oltarsh got "aggressive" with her in his room and forced her to have sex. He then took her to the shared bathroom. He let other frat brothers know there was a girl available for sex. It was called "pulling a train."

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U.S. + Live TV U.S. Edition + menu

Smoking helps calm Maria, who is recovering from years of post-traumatic stress, eating disorders and alcoholism.

The fraternity brother who was given immunity told police that Oltarsh was fondling Maria in the shower and that he joined them there. He and Oltarsh took turns having sex with her in the shower.

At some point, McPharlin went into the shower. He told prosecutors that he took his boxers off, got in the shower with Maria but did not have sexual intercourse with her. He got up and left after he saw Stewart, who he was not acquainted with at the time, come into the bathroom.

Fraternity brothers who spoke to police said Stewart, a former high school football player from Orlando, could not get an erection and bragged about using a Colgate toothpaste tube to violate Maria.

They called her obscene names and repeatedly told her she was in a house belonging to Sigma Chi, a rival fraternity. When they were done, they took her back to Oltarsh's room and dressed her. Oltarsh used a ballpoint pen to write the words "Hatchet Wound," crude slang for a woman's genitals, on Maria's right thigh. On the other, he scrawled the Greek letters of another fraternity, Sigma Phi Epsilon.

Oltarsh and McPharlin carried her by the arms and legs to the Theta Chi fraternity house next door and left her limp body in the hallway, according to the fraternity brother who cooperated with the police. They left her there with her legs spread, her skirt pulled up and her underwear down.

They then walked to the convenience store, the one that sold Texas taters, and Oltarsh used a pay phone to call the FSU police. He returned to his room on the third floor of the Pike house and watched from a window along with his accomplices as police officers and paramedics arrived at 5:30 in the morning. An ambulance sped Maria to Tallahassee Memorial Hospital.

Her blood alcohol level was recorded at .349, three times the legal limit in Florida and one 4-ounce drink away from alcohol concentration that could have proved fatal.

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U.S. + Live TV U.S. Edition + menu determined she had been sexually violated by more than one person. She had scratches and abrasions on her body.

Later that day, she returned to Dorman Hall and stood in the shower, wanting desperately for the hot water to wash everything away.

She just wanted to forget it ever happened. Only 20% of campus victims from the ages of 18 to 24 report their assaults to their institutions or law enforcement agencies, according to the Department of Justice.

Maria did not want to press charges but District Attorney Willie Meggs did.

The grand jury concluded Maria was physically helpless and was unable to resist and on May 18, 1988, Oltarsh and Stewart were indicted on a sexual battery charge. Oltarsh and McPharlin were charged with culpable negligence and kidnapping in connection with moving Maria. In addition, Oltarsh faced charges related to writing on Maria's thighs and giving her alcohol as a minor. McPharlin was charged with possession of alcohol by a minor.

The three maintained their innocence, saying that Maria was a willing participant.

But Meggs felt Pi Kappa Alpha was covering up a crime.

The indictments were largely based on the testimony of the fraternity brother who was given immunity and not charged in exchange. It was believed to be the first time members of a fraternity on a major university campus faced prosecution in a gang rape.

Meggs understood the concept of fraternal loyalty from his service in the Marine Corps and years spent pounding Tallahassee pavements in his first beat as a cop. But he despised how the Pikes closed ranks around their own and had to be subpoenaed to answer questions.

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U.S. + Live TV U.S. Edition + menu

Maria crossed this intersection on the south side of campus on her way to the Pi Kappa Alpha house in 1988. She thought she would be attending a party. She was wrong.

Even after all these years, Meggs gets emotional talking about Maria's case.

"Their conduct was so egregious," he tells me. "It was unconscionable."

"I was really disappointed that there wasn't one red-blooded American in this fraternity who said: 'Stop it.' That not one young man asked: 'What if that was my sister?' "

It didn't matter to Meggs, his assistant state attorneys who argued the case or the investigating police officers that Maria drank too much. Or that she was known as a party girl. She was not conscious enough to have consented that night.

Even "a prostitute can be raped," he says, if the sex act is not consensual. And in Maria's case, he says, she "was in such a state that she could not say 'no.'"

The state built its felony case against Oltarsh, who it determined was the instigator and ring leader. Photographs show the 23-year-old college junior appearing in court wearing jail garb and a smug smile.

As the legal proceedings began, deep divisions surfaced on campus. I was editor of an independent newspaper called the Florida Flambeau that broke the news of Maria's rape and covered every turn of the story. I understood her need for privacy but was bothered that we never heard her version of events. Letters to the editor attacked Maria as a liar, or someone who deserved what she got. Some called her unpatriotic for smearing the reputations of FSU's upstanding young men.

Maria couldn't bear to watch television or read the newspapers. The women in her dorm stopped talking to her. She was afraid to walk out the door.

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U.S. + Live TV U.S. Edition + menu grandmother picked a gardenia from her garden and put it in a glass of water in Maria's room so she would wake up to the sweet smell. She was the only person in her family to whom Maria confided what had happened.

In the fall of 1988, Maria returned to FSU.

She had a nose job, dyed her hair and exchanged her black clothes for pastels so she wouldn't be instantly recognizable. She thought she could sit in her classes again as a sophomore. She thought she could reinvent herself.

But when she came across the word "whore" scrawled on her memo board, everything went dark again. She popped over-the-counter sleeping pills, one after another. Luckily, she vomited them before they could kill her.

Her parents arrived from Louisiana, packed up her belongings and took her home. She quit FSU and ended up in a halfway house in Texas, battling post-traumatic stress, depression, alcoholism and eating disorders -- typical of many college rape survivors.

The rape set Maria on a downward spiral of shame, self-loathing, fear, anger. And more shame.

In May 1990 Oltarsh's lawyer, Craig Stella, served her a subpoena to return to Tallahassee for a deposition before a widely publicized trial.

Tallahassee attorney Dean LeBoeuf sought to protect Maria during the legal proceedings. The case was groundbreaking, he says; a judge ruled defense lawyers could not interrogate Maria about her sexual history.

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She sat in Room 314-E at the Leon County Courthouse, clutched a cushion to her chest and answered difficult questions. But prosecutors succeeded in persuading the judge to apply Florida's rape shield law, then fairly new, to her deposition. The judge ruled defense lawyers could not use Maria's sexual history against her.

Attorney Dean LeBoeuf, who represented Maria throughout her ordeal, says as far as he knows, it was the first time the rape shield law was utilized in pre-trial testimony.

Pi Kappa Alpha brothers in blue blazers packed the courtroom for Oltarsh's trial. On the other side of the aisle sat a group of women who had decided they would appear there every day to support Maria. They were professors, students and women who worked in rape crisis centers; they wore little red ribbons to show solidarity. Many had written letters to Maria on the eve of her deposition. Patricia Martin, a professor of social work at FSU, was one of them.

"We are here for you," Martin wrote. "I admire you -- only a person with strength and courage could hang in there, like you have done and are doing."

The women's letters were Maria's "lifeline" and became rare treasures from that era. They were the closest thing she received to the kinds of messages of support women and girls can get these days when social media sites like Facebook, Twitter or Snapchat are used for the good.

Maria's therapist, who spoke to me with Maria's permission, feels certain that Maria would not have felt as ostracized had her rape happened today.

"We have advanced tremendously in the last 30 years," says Dr. Tina Goodin. "A lot of what was in the closet then is out today. And social media, when it is used well, changes things a lot. We see a sense of compassion and women asserting themselves."

What rape survivors want, says Goodin, is to be validated in their experience; to know that what happened to them did not occur because they are crazy. In Maria's case, the only comfort came from those letters she received from Martin and others.

"I knew she did not have any support," Martin says. "Her so-called friends were siding with the boys."

Martin is now retired but remains a researcher on campus rape. She published a widely-cited paper in 1989 on fraternities and sexual assault based on Maria's case.

"I thought I was aware but I was so shocked by this case," Martin says. "It was so unsavory -- every last bit of it."

Campus safety had become a hot topic in the 1980s, but Martin says attention to the problem waned in the 1990s. "Maybe we thought things were fixed."

They aren't. "Alcohol, fraternities, an adoration for athletes," she says, "are all important factors."

In the end, Maria was spared the experience of having to look Oltarsh in the eye. Facing a life prison sentence, he accepted an 11th-hour plea deal.

McPharlin pleaded no contest, had the charges reduced and was placed on probation for a year. Stewart got five years probation on his no-contest plea to sexual battery. Both were spared felony records. Oltarsh received a tougher sentence of 364 days in jail and 20 years of probation.

After his release, Oltarsh violated the terms of his probation by possessing a firearm and failing to tell his

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After his initial sentencing, Oltarsh told reporters that he was convinced he would have been acquitted had all the evidence been laid out in court. He has never spoken publicly about Maria. Nor did he respond to a recent request for an interview made through Stella, his lawyer.

Stella says his client took the plea deal unwillingly; Oltarsh does not believe he did anything wrong.

District Attorney Willie Meggs pulled out boxes of ﬁles from the case against Daniel Oltarsh, the Pi Kappa Alpha fraternity member who faced life in prison in Maria's rape case.

"I was charged with defending a young man who very much wanted to put this behind him (and not) risk spending 20 years of his life in a penitentiary," Stella says. "I do believe the facts of the case warranted a not guilty verdict. I thought that then and I believe that now.

"Was it incredibly poor taste?" Stella asks. "Yes, but not necessarily criminal."

Oltarsh's probationary period ended this year. He lives in Fort Lauderdale and can be found on the Florida sex offender registry.

'I felt robbed'

Maria had never seen her deposition until I took her to the Leon County Courthouse to meet with Meggs. I'd caught up with him a few days earlier in his fourth-floor office, surrounded by boxes of files he had pulled for us from a documents warehouse. He told me he liked to reconnect with crime victims in cases he

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U.S. + Live TV U.S. Edition + menu "I'm proud of you," he tells Maria. "You didn't want to go forward but we felt like we had to do this. I think you helped a lot of people in the long run. You were courageous."

It is only in the last decade, after three failed marriages and the deaths of her mother and sister -- both alcohol related -- that Maria has begun to heal.

She returned to college in Texas and in 2002 completed a master's degree in psychology.

"I went back to school because I felt robbed. Robbed of my education, robbed of my typical student life, robbed of my aspirations, robbed of success," she says. "Those guys took all that away from me. I showed them wrong."

FSU took the significant step of suspending Pi Kappa Alpha as the investigation unfolded. The fraternity was banned from campus until its reinstatement in 2000. The Pikes own a new house about a mile east of their previous location. Last year, the fraternity was suspended again during another sexual battery investigation but the members were cleared.

Maria knows she will never get an apology -- from her attackers or others who revictimized her with their actions.

But she can get off the rollercoaster ride of recovery and relapses that has dominated her life. She has recovered from an anorexic weight of 91 pounds and has not touched alcohol in two years.

"For several years, I blocked it as though it happened to someone else just so I could move forward with my life," she says. "I was trying to make myself disappear."

Her words resonate. They are the same words I heard on the other side of the world, when I arrived at a remote village in India to speak with Mathura, a woman who was raped as a teenager by two police officers. They are the same words I use to describe my actions after being raped by a classmate.

At the courthouse, we obtain a copy of Maria's deposition and other case files. She gasps as she reads her own words all these years later.

She tells me she is proud of 18-year-old Maria's fortitude.

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Maria walked through the FSU campus clutching an amethyst geode. She hoped to ﬁnd a sense of peace after revisiting the scene of the crime.

Rape is 'not the sum of me'

For years, the old Pike house stood like an eye sore, boarded up and crumbling. For many, it was hard to drive by it without thinking about the rape.

Maria and I stand on the street where the fraternity's mansion once soared. In its place are new dorms built to match the Old English style of most other buildings on campus and nestled amid trees. It's an idyllic setting, but Maria sees different images.

They can't be unseen.

Maria is 46 now and works as a manager in an agency that oversees programs for people with disabilities. She couldn't have stood again on this corner of the FSU campus any earlier in her life. She was not ready to face the past, she says, until now.

She sees herself in all the young women who walk past us. It's a different world with smart phones and emergency blue lights every few feet. But in many ways, it feels the same.

"I feel nervous for them," she says.

She acknowledges that in most of her life, she turned to alcohol to cope with conflict, to numb her pain. And that it has taken all this time for her to shed her shame and say out loud that what happened to her on this street was not her fault. "I didn't deserve it."

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U.S. + Live TV U.S. Edition + menu "I bear the scars," she says, "but what happened to me here is not the sum of me."

I look at Maria, her fingers wrapped around a Marlboro, and feel I have known her for a lifetime. I understand how the women in "The Hunting Ground" were able to connect in such profound ways.

There is solace in shared experiences, I think to myself, even rape. It is as though I don't have to say my thoughts out loud.

We climb into my Mini Cooper in silence and drive down Jefferson Street, away from campus. Maria, I know, is finally leaving FSU.

"The Hunting Ground" aired on CNN on Sunday, November 22, at 8 p.m. ET. The film was immediately followed by a special hosted by CNN's Alisyn Camerota. Subjects of the film and critics alike discussed the issues the documentary raised and controversy surrounding sexual abuse allegations on college campuses across America.

On December 1, 2015, "The Hunting Ground" was shortlisted for an Academy Award for Best Feature Documentary. For a full list of shortlisted films please click this link.

The documentary is currently available on VOD including iTunes.

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Magazine Have We Learned Anything From the Columbia Rape Case?

By EMILY BAZELON MAY 29, 2015 Last week, one of the messiest campus sexual-assault cases in recent memory came to an equally messy conclusion when Emma Sulkowicz, aided by four friends, carried a 50-pound mattress onto the stage at a Columbia University graduation ceremony. In a much-publicized art-performance-slash-protest, Sulkowicz had carried the mattress everywhere she went on campus since the beginning of her senior year last fall, vowing to continue to do so until she graduated — or until Columbia expelled a classmate she accused of rape in April 2013. More than seven months earlier, she says, Paul Nungesser, a friend at the time, raped her during what had until that point been a consensual encounter at the start of their sophomore year.

Columbia investigated, held a hearing and cleared Nungesser of responsibility. But the university also gave Sulkowicz academic credit and logistical support for “Mattress Performance (Carry That Weight),” which doubled as her senior thesis project. For the survivor movement, Sulkowicz’s art — with its powerful image of a woman publicly shouldering the burden of a violation she felt in her bedroom — has been a kind of triumph.

For Nungesser, it has been a nightmare. Though he has not been found at fault, he was called a rapist on a list anonymously scrawled in campus bathrooms. Columbia’s undergraduate newspaper published his name when Sulkowicz went to the police. (Sulkowicz later stopped talking to investigators because, she says, the police were visiting her apartment unexpectedly. Nungesser met with prosecutors of his own accord. No charges were brought.) Nungesser’s friends fell away. He found

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himself shunned on campus. In April, he sued Columbia for gender discrimination, arguing that the university supported a campaign to bully and harass him and that the administration would never have let a male student target a female student in the same way he had been targeted.

Last week’s graduation exemplified the way in which Columbia has been caught between two students in an increasingly bitter fight over truth and narrative. Columbia officials asked Sulkowicz not to carry the mattress onstage, but in the end let her go ahead. Then Lee C. Bollinger, the university president, turned away as Sulkowicz approached him, not shaking her hand as he did those of the other graduates. (The university later said it was because the mattress got in the way; here’s the video if you want to judge for yourself.) The next day, the campus woke up to nasty posters in the neighborhood, with a picture of Sulkowicz and her mattress and the words “Pretty Little Liar” and “#RAPEHOAX.” The trolling has since continued online.

Nungesser’s parents, meanwhile, wrote in an email to me that “graduation was devastating.” They were especially upset by an exhibition at a university gallery, preceding graduation, that included Sulkowicz’s prints of a naked man with an obscenity and of a couple having sex, inked over a copy of a Times article about Nungesser. “We cannot imagine a more humiliating experience,” Andreas Probosch, Nungesser’s father, told me via email after going to the exhibition. Sulkowicz wrote in an email that the images are cartoons. “What are the functions of cartoons?” she asked. “Do they depict the people themselves (a feat which, if you’ve done enough reading on art theory, you will realize is impossible), or do they illustrate the stories that have circulated about a person?”

Sulkowicz and Nungesser’s case is unusual in the exhausting intensity of the media circus that has attended it. But the swirl of accusations and counteraccusations, and the reaction to them, reflects the current moment — a transitional period in the evolution of how universities handle sexual assault. The Obama administration has demanded that institutions do more to investigate and adjudicate complaints of sexual assault and harassment, but it’s not clear that they have shown that their disciplinary processes have the requisite legitimacy. It is a moment in which, as the tumult at Columbia shows, we can’t afford to stay for long.

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As universities scramble to improve their disciplinary processes, it’s hard to know how much things are changing on the ground; the cases remain shrouded in secrecy. There are good reasons to protect student privacy, not to mention a federal law requiring institutions to do so. But the utter lack of transparency also imposes a cost. The smattering of cases that blow up in the press may well present a distorted view, lowering public confidence. (This is what administrators and lawyers who see these cases up close say.) And beyond generalities, universities usually can’t respond to criticism about specific cases.

As a result, even the procedural disputes between Sulkowicz and Nungesser are lost in the land of she-said-he-said. Sulkowicz has accused university administrators of a litany of failures, including asking ignorant and insensitive questions about the physical positions that she and Nungesser had engaged in during sex. (She says that one panelist remarked, “I don’t know how it’s possible to have anal sex without lubrication first.”)

Does this reflect a bias that definitively disadvantaged Sulkowicz in pleading her case? Or was it a mistake in a mostly reasonable effort to ask Sulkowicz the kind of probing if grueling questions that are necessary to determine the truth in a rape case like this one? There is no publicly available tape or transcript of the hearing, and so no way to prove whether it was fair or unfair.

Columbia hasn’t defended its handling of the case, or the outcome, beyond rejecting Sulkowicz’s appeal. To Nungesser, that’s what is unfair. “They have a process in place, which I followed to the letter,” he told me. “I had everything to lose in it. And it’s been worth nothing. Absolutely nothing.” Columbia officials think that declining to comment about publicized cases is necessary to encourage other students to go to rape counselors or through the disciplinary process. “Students should be confident that the university is not going to talk about these cases in any respect,” said Suzanne B. Goldberg, a Columbia law professor who is the executive vice president for university life.

Nungesser says that he prevailed despite Columbia’s refusal to consider his best evidence: Facebook messages that he and Sulkowicz sent to each other before and after the alleged rape. The messages sound friendly: “I feel like we need to have some

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real time where we can talk about life and thingz/because we still haven’t really had a paul-emma chill sesh since summmmerrrr,” Sulkowicz wrote a few days after the night in question. After The Daily Beast published the exchanges, Sulkowicz explained them to the website Jezebel, recalling, “I’m being irrational, thinking that talking with him would help me.”

Sulkowicz says some of the Facebook messages were admitted as evidence. Her recollection is at odds with that of a graduate student who attended the hearings with Nungesser, as his designated “supporter,” and said the messages were not included. In court, the Facebook messages surrounding the night of the alleged rape would probably be admitted in a criminal case as relevant, according to Deborah Tuerkheimer, a Northwestern University law professor, and the alleged victim would also have the chance to explain them. (This is also what Columbia’s policy now appears to provide, though the rule was somewhat different at the time of the hearing.)

Deciding which evidence to admit is a minefield that universities have to pick their way through. For example, Columbia says it does not allow “prior conduct violations” into evidence unless the alleged assailant has been found “responsible” for them. (That’s the word universities use instead of “guilty.”) State courts would usually exclude evidence of prior sexual misconduct in a criminal sexual assault case, Tuerkheimer says, though federal courts may admit it.

The distinction is the subject of another dispute over process between Nungesser and Sulkowicz. At the time Sulkowicz came forward, two other women accused Nungesser of different forms of sexual misconduct. He was found not responsible. She says the panel at her hearing did not consider the other allegations against him. Nungesser’s father said the allegations were mixed together. (To briefly summarize them, Nungesser’s girlfriend from freshman year said their monthslong relationship was abusive and included nonconsensual sex; the case was dropped after she stopped answering Columbia’s emails over the summer. A second woman, who lived at the same literary society as Nungesser, said he grabbed her in an empty room during a party there. A third accusation against Nungesser, brought in 2014, was dismissed earlier this month.)

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Nungesser denies all the allegations. He was initially found responsible in the party incident, but he was granted an appeal, and the finding against him was overturned. The appeal raises another issue with the rules. At the time it took place, the university said that a supporter at a hearing had to be a current Columbia faculty member, administrator or student. The woman who said Nungesser grabbed her at the party had graduated, and so had the close friends she would have chosen as supporters, she told me. The lack of emotional support was one reason she didn’t want to go through a rehearing.

This is an issue Columbia has tried to address. Last summer, the university announced significant changes to its sexual assault and harassment procedures. Students are now permitted to bring a lawyer to their hearings, and if they can’t afford an attorney, the university will provide one. The university also hired new investigators and other staff members and gave training on how to hear cases to the administrators who serve as panelists. Columbia also started a “sexual respect initiative” aimed at prevention.

Maybe the changes will help prevent another case from going awry in the way Sulkowicz and Nungesser’s did. Both feel that they are victims. Sulkowicz has concluded that “the system is broken because it is so much based on proof that a lot of rape survivors don’t have.” She sees it this way: “Even if you have physical evidence, you can prove that violence occurred but not that someone didn’t want the sex to be violent.” Nungesser, of course, sees a different kind of failing. “Some part of me will never move on from this,” he said. “It will forever change how I walk into a room. I had immense trust in people and institutions, perhaps naïvely, and that trust is very much gone.”

Their reactions, natural but also unrealistic in their expectations of this or any other justice system, underscore an old truth: Rape is extremely difficult to prosecute both effectively and fairly. Should universities be handling these cases at all? Plenty of people are asking that question. And yet, in the eyes of the government, universities have this responsibility because of an important principle rooted in the federal law, Title IX: If a rape prevents a victim from taking full advantage of her education, then it is a civil rights violation as well as a crime. Often victims want the kind of relief — counseling, or academic accommodations, or the assurance that their

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alleged assailants won’t contact them — that the criminal justice system isn’t set up to provide. And the university’s obligations don’t just extend to investigating and hearing cases. Institutions also have to help students figure out how to prevent sexual assault, so fewer victims face this barrier to education to begin with.

The demands now being made of universities are still relatively new. It’s not surprising that it’s taking time to meet them. The problem is that it’s hard to be patient.

Emily Bazelon is a staff writer for the magazine and the Truman Capote Fellow at Yale Law School.

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Rolling Stone and UVA: The Columbia University Graduate School of Journalism Report An anatomy of a journalistic failure

BY SHEILA CORONEL, STEVE COLL, DEREK KRAVITZ April 5, 2015

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! A NOTE FROM THE EDITOR: Last November, we published a story, 'A " Rape on Campus' [RS 1223], # that centered around a University of $ Virginia student's horrifying account of her alleged gang rape at a campus fraternity house. Within days, commentators started to question the

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veracity of our narrative. Then, when AROUND THE WEB The Washington Post uncovered details suggesting that the assault could not have taken place the way we described it, the truth of the story became a subject of national controversy.

15 Most Underrated Peter Jackson Explains As we asked ourselves how we could Bands of the '90s Why The 'Hobbit' Movies Were A Mess have gotten the story wrong, we decided the only responsible and credible thing to do was to ask someone from outside the magazine to investigate any lapses in reporting, editing and fact-checking behind the

story. We reached out to Steve Coll, Prince Jackson Drops Val Kilmer Is Returning dean of the Columbia School of Bombshell About His As Iceman In 'Top Gun Biological Father 2' Journalism, and a Pulitzer Prize- POWERED BY ZERGNET winning reporter himself, who accepted our offer. We agreed that we would cooperate fully, that he and his team could take as much time as they

needed and write whatever they FEATURED NEWS wanted. They would receive no FROM payment, and we promised to publish Zayn Malik Reveals What He their report in full. (A condensed Thinks Of 1D’s ‘History’ Video version of the report will appear in the next issue of the magazine, out April Chairlift Talk Moth And 8th.) Hiding A Secret Code In Their Music

This report was painful reading, to me personally and to all of us at Rolling The View From Rihanna’s ANTIdiaRy Bedroom Stone. It is also, in its own way, a fascinating document — a piece of journalism, as Coll describes it, about a failure of journalism. With its

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publication, we are officially Wiz Khalifa Explains How He retracting 'A Rape on Campus.' We are And Kanye West Squashed also committing ourselves to a series Their Beef of recommendations about journalistic practices that are The 2016 Grammys Just Gave You A Free Ticket To See spelled out in the report. We would ‘Hamilton’ like to apologize to our readers and to all of those who were damaged by our story and the ensuing fallout, including members of the Phi Kappa Psi fraternity and UVA administrators and students. Sexual assault is a serious problem on college campuses, and it is important that rape victims feel comfortable stepping forward. It saddens us to think that their willingness to do so might be diminished by our failings.

Will Dana, Managing Editor

Last July 8, Sabrina Rubin Erdely, a writer for Rolling Stone, telephoned Emily Renda, a rape survivor working on sexual assault issues as a staff member at the University of Virginia. Erdely said she was searching for a single, emblematic college rape case that would show "what it's like to be on campus now … where not only is rape so prevalent but also that there's this pervasive culture of sexual harassment/rape culture," according to Erdely's notes of the conversation.1

Renda told Erdely that many assaults

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take place during parties where "the goal is to get everyone blackout drunk." She continued, "There may be a much darker side of this" at some fraternities. "One girl I worked with closely alleged she was gang-raped in the fall, before rush, and the men who perpetrated it were young guys who were not yet members of the fraternity, and she remembers one of them saying to another … 'C'mon man, don't you want to be a brother?'"

Renda added, "And obviously, maybe her memory of it isn't perfect."

Erdely's notes set down her reply: "I tell her that it's totally plausible."

Renda put the writer in touch with a rising junior at UVA who would soon be known to millions of Rolling Stone readers as "Jackie," a shortened version of her true first name. Erdely said later that when she first encountered Jackie, she felt the student "had this stamp of credibility" because a university employee had connected them. Earlier that summer, Renda had even appeared before a Senate committee and had made reference to Jackie's allegations during her testimony – another apparent sign of the case's seriousness.

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"I'd definitely be interested in sharing my story," Jackie wrote in an email a few days later.

On July 14, Erdely phoned her. Jackie launched into a vivid account of a monstrous crime. She said, according to Erdely's notes, that in September 2012, early in her freshman year, a third-year student she knew as a fellow lifeguard at the university's aquatic center had invited her to "my first fraternity party ever." After midnight, her date took her upstairs to a darkened bedroom. "I remember looking at the clock and it was 12:52 when we got into the room," she told Erdely. Her date shut the door behind them. Jackie continued, according to the writer's notes:

My eyes were adjusting to the dark. And I said his name and turned around. … I heard voices and I started to scream and someone pummeled into me and told me to shut up. And that's when I tripped and fell against the coffee table and it smashed underneath me and this other boy, who was throwing his weight on top of me. Then one of them grabbed my shoulders. … One of them put his hand over my mouth and I bit him – and he straight-up punched me in the face. … One of them said, 'Grab its motherfucking leg.' As soon

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as they said it, I knew they were going to rape me.

The rest of Jackie's account was equally precise and horrifying. The lifeguard coached seven boys as they raped her one by one. Erdely hung up the phone "sickened and shaken," she said. She remembered being "a bit incredulous" about the vividness of some of the details Jackie offered, such as the broken glass from the smashed table. Yet Jackie had been "confident, she was consistent." (Jackie declined to respond to questions for this report. Her lawyer said it "is in her best interest to remain silent at this time." The quotations attributed to Jackie here come from notes Erdely said she typed contemporaneously or from recorded interviews.)2

Between July and October 2014, Erdely said, she interviewed Jackie seven more times. The writer was based in Philadelphia and had been reporting for Rolling Stone since 2008. She specialized in true-crime stories like "The Gangster Princess of Beverly Hills," about a high-living Korean model and self-styled Samsung heiress accused of transporting 7,000 pounds of marijuana. She had written about pedophile priests and sexual assault in

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the military. Will Dana, the magazine's managing editor, considered her "a very thorough and persnickety reporter who's able to navigate extremely difficult stories with a lot of different points of view."

Jackie proved to be a challenging source. At times, she did not respond to Erdely's calls, texts and emails. At two points, the reporter feared Jackie might withdraw her cooperation. Also, Jackie refused to provide Erdely the name of the lifeguard who had organized the attack on her. She said she was still afraid of him. That led to tense exchanges between Erdely and Jackie, but the confrontation ended when Rolling Stone's editors decided to go ahead without knowing the lifeguard's name or verifying his existence. After that concession, Jackie cooperated fully until publication.

Erdely believed firmly that Jackie's account was reliable. So did her editors and the story's fact-checker, who spent more than four hours on the telephone with Jackie, reviewing every detail of her experience. "She wasn't just answering, 'Yes, yes, yes,' she was correcting me," the checker said. "She was describing the scene for me in a very vivid way. … I did not have doubt." (Rolling Stone requested

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that the checker not be named because she did not have decision- making authority.)

Rolling Stone published "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA" on Nov. 19, 2014. It caused a great sensation. "I was shocked to have a story that was going to go viral in this way," Erdely said. "My phone was ringing off the hook." The online story ultimately attracted more than 2.7 million views, more than any other feature not about a celebrity that the magazine had ever published.

A week after publication, on the day before Thanksgiving, Erdely spoke with Jackie by phone. "She thanked me many times," Erdely said. Jackie seemed "adrenaline-charged … feeling really good."

Erdely chose this moment to revisit the mystery of the lifeguard who had lured Jackie and overseen her assault. Jackie's unwillingness to name him continued to bother Erdely. Apparently, the man was still dangerous and at large. "This is not going to be published," the writer said, as she recalled. "Can you just tell me?"

Jackie gave Erdely a name. But as the reporter typed, her fingers stopped.

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Jackie was unsure how to spell the lifeguard's last name. Jackie speculated aloud about possible variations.

"An alarm bell went off in my head," Erdely said. How could Jackie not know the exact name of someone she said had carried out such a terrible crime against her – a man she professed to fear deeply?

Over the next few days, worried about the integrity of her story, the reporter investigated the name Jackie had provided, but she was unable to confirm that he worked at the pool, was a member of the fraternity Jackie had identified or had other connections to Jackie or her description of her assault. She discussed her concerns with her editors. Her work faced new pressures. The writer Richard Bradley had published early if speculative doubts about the plausibility of Jackie's account. Writers at Slate had challenged Erdely's reporting during a podcast interview. She also learned that T. Rees Shapiro, a Washington Post reporter, was preparing a story based on interviews at the University of Virginia that would raise serious doubts about Rolling Stone's reporting.

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Late on Dec. 4, Jackie texted Erdely, and the writer called back. It was by now after midnight. "We proceeded to have a conversation that led me to have serious doubts," Erdely said.

She telephoned her principal editor on the story, Sean Woods, and said she had now lost confidence in the accuracy of her published description of Jackie's assault. Woods, who had been an editor at Rolling Stone since 2004, "was just stunned," he said. He "raced into the office" to help decide what to do next. Later that day, the magazine published an editor's note that effectively retracted Rolling Stone's reporting on Jackie's allegations of gang rape at the University of Virginia. "It was the worst day of my professional life," Woods said.

***

Failure and Its Consequences

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pursued, would likely have led the magazine's editors to reconsider publishing Jackie's narrative so prominently, if at all. The published story glossed over the gaps in the magazine's reporting by using pseudonyms and by failing to state where important information had come from.

In late March, after a four-month investigation, the Charlottesville, Va., police department said that it had "exhausted all investigative leads" and had concluded, "There is no substantive basis to support the account alleged in the Rolling Stone article."3

The story's blowup comes as another shock to journalism's credibility amid head-swiveling change in the media industry. The particulars of Rolling Stone's failure make clear the need for a revitalized consensus in newsrooms old and new about what best journalistic practices entail, at an operating-manual-level of detail.

As at other once-robust print magazines and newspapers, Rolling Stone's editorial staff has shrunk in recent years as print advertising revenue has fallen and shifted online. The magazine's full-time editorial ranks, not including art or photo staff,

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have contracted by about 25 percent since 2008. Yet Rolling Stone continues to invest in professional fact-checkers and to fund time-consuming investigations like Erdely's. The magazine's records and interviews with participants show that the failure of "A Rape on Campus" was not due to a lack of resources. The problem was methodology, compounded by an environment where several journalists with decades of collective experience failed to surface and debate problems about their reporting or to heed the questions they did receive from a fact-checking colleague.

Erdely and her editors had hoped their investigation would sound an alarm about campus sexual assault and would challenge Virginia and other universities to do better. Instead, the magazine's failure may have spread the idea that many women invent rape allegations. (Social scientists analyzing crime records report that the rate of false rape allegations is 2 to 8 percent.) At the University of Virginia, "It's going to be more difficult now to engage some people … because they have a preconceived notion that women lie about sexual assault," said Alex Pinkleton, a UVA student and rape survivor who was one of Erdely's

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sources.

There has been other collateral damage. "It's completely tarnished our reputation," said Stephen Scipione, the chapter president of Phi Kappa Psi, the fraternity Jackie named as the site of her alleged assault. "It's completely destroyed a semester of our lives, specifically mine. It's put us in the worst position possible in our community here, in front of our peers and in the classroom."

The university has also suffered. Rolling Stone's account linked UVA's fraternity culture to a horrendous crime and portrayed the administration as neglectful. Some UVA administrators whose actions in and around Jackie's case were described in the story were depicted unflatteringly and, they say, falsely. Allen W. Groves, the University dean of students, and Nicole Eramo, an assistant dean of students, separately wrote to the authors of this report that the story's account of their actions was inaccurate.4

In retrospect, Dana, the managing editor, who has worked at Rolling Stone since 1996, said the story's breakdown reflected both an "individual failure" and "procedural failure, an institutional failure. …

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Every single person at every level of this thing had opportunities to pull the strings a little harder, to question things a little more deeply, and that was not done."

Yet the editors and Erdely have concluded that their main fault was to be too accommodating of Jackie because she described herself as the survivor of a terrible sexual assault. Social scientists, psychologists and trauma specialists who support rape survivors have impressed upon journalists the need to respect the autonomy of victims, to avoid re-traumatizing them and to understand that rape survivors are as reliable in their testimony as other crime victims. These insights clearly influenced Erdely, Woods and Dana. "Ultimately, we were too deferential to our rape victim; we honored too many of her requests in our reporting," Woods said. "We should have been much tougher, and in not doing that, we maybe did her a disservice."

Erdely added: "If this story was going to be about Jackie, I can't think of many things that we would have been able to do differently. … Maybe the discussion should not have been so much about how to accommodate her but should have been about whether

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she would be in this story at all." Erdely's reporting led her to other, adjudicated cases of rape at the university that could have illustrated her narrative, although none was as shocking and dramatic as Jackie's.

Yet the explanation that Rolling Stone failed because it deferred to a victim cannot adequately account for what went wrong. Erdely's reporting records and interviews with participants make clear that the magazine did not pursue important reporting paths even when Jackie had made no request that they refrain. The editors made judgments about attribution, fact-checking and verification that greatly increased their risks of error but had little or nothing to do with protecting Jackie's position.

It would be unfortunate if Rolling Stone's failure were to deter journalists from taking on high-risk investigations of rape in which powerful individuals or institutions may wish to avoid scrutiny but where the facts may be underdeveloped. There is clearly a need for a more considered understanding and debate among journalists and others about the best practices for reporting on rape survivors, as well as on sexual assault allegations that have not been

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adjudicated. This report will suggest ways forward. It will also seek to clarify, however, why Rolling Stone's failure with "A Rape on Campus" need not have happened, even accounting for the magazine's sensitivity to Jackie's position. That is mainly a story about reporting and editing.

***

'How Else Do You Suggest I Find It Out?'

By the time Rolling Stone's editors assigned an article on campus sexual assault to Erdely in the spring of 2014, high-profile rape cases at Yale, Harvard, Columbia, Vanderbilt and Florida State had been in the headlines for months. The Office of Civil Rights at the federal Department of Education was leaning on colleges to reassess and improve their policies. Across the country, college administrators had to adjust to stricter federal oversight as well as to a new generation of student activists, including women who declared openly that they had been raped at school and had not received justice.

There were numerous reports of campus assault that had been mishandled by universities. At Columbia, an aggrieved student

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dragged a mattress around campus to call attention to her account of assault and injustice. The facts in these cases were sometimes disputed, but they had generated a wave of campus activism. "My original idea," Dana said, was "to look at one of these cases and have the story be more about the process of what happens when an assault is reported and the sort of issues it brings up."

Jackie's story seemed a powerful candidate for such a narrative. Yet once she heard the story, Erdely struggled to decide how much she could independently verify the details Jackie provided without jeopardizing Jackie's cooperation. In the end, the reporter relied heavily on Jackie for help in getting access to corroborating evidence and interviews. Erdely asked Jackie for introductions to friends and family. She asked for text messages to confirm parts of Jackie's account, for records from Jackie's employment at the aquatic center and for health records. She even asked to examine the bloodstained red dress Jackie said she had worn on the night she said she was attacked.

Jackie gave the reporter some help. She provided emails from a pool supervisor as evidence of her employment there. She introduced

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Erdely to Rachel Soltis, a freshman-year suitemate. Soltis confirmed that in January 2013, four months after the alleged attack, Jackie had told her that she had been gang-raped.

Yet Jackie could also be hard to pin down. Other interviews Jackie said she would facilitate never materialized. "I felt frustrated, but I didn't think she didn't want to produce" corroboration, Erdely said. Eventually, Jackie told Erdely that her mother had thrown away the red dress. She also said that her mother would be willing to talk to Erdely, but the reporter said that when she called and left messages several times, the mother did not respond.

There were a number of ways that Erdely might have reported further, on her own, to verify what Jackie had told her. Jackie told the writer that one of her rapists had been part of a small discussion group in her anthropology class. Erdely might have tried to verify independently that there was such a group and to identify the young man Jackie described. She might have examined Phi Kappa Psi's social media for members she could interview and for evidence of a party on the night Jackie described. Erdely might have looked for students who

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worked at the aquatic center and sought out clues about the lifeguard Jackie had described. Any one of these and other similar reporting paths might have led to discoveries that would have caused Rolling Stone to reconsider its plans. But three failures of reporting effort stand out. They involve basic, even routine journalistic practice – not special investigative effort. And if these reporting pathways had been followed, Rolling Stone very likely would have avoided trouble.

Three friends and a 'shit show'

During their first interview, Jackie told Erdely that after she escaped the fraternity where seven men, egged on by her date, had raped her, she called three friends for help.

She described the two young men and one woman – now former friends, she told Erdely – as Ryan, Alex and Kathryn. She gave first names only, according to Erdely's notes. She said they met her in the early hours of Sept. 29, 2012, on the campus grounds. Jackie said she was "crying and crying" at first and that all she could communicate was that "something bad" had happened. She said her friends understood that she had been sexually assaulted. (In

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interviews for this report, Ryan and Alex said that Jackie told them that she had been forced to perform oral sex on multiple men.) In Jackie's account to Erdely, Ryan urged her to go to the university women's center or a hospital for treatment. But Alex and Kathryn worried that if she reported a rape, their social lives would be affected. "She's going to be the girl who cried 'rape' and we'll never be allowed into any frat party again," Jackie recalled Kathryn saying.

Jackie spoke of Ryan sympathetically, but the scene she painted for Rolling Stone's writer was unflattering to all three former friends. Journalistic practice – and basic fairness – require that if a reporter intends to publish derogatory information about anyone, he or she should seek that person's side of the story.

Erdely said that while visiting UVA, she did ask Alex Pinkleton, a student and assault survivor, for help in identifying or contacting the three. (Pinkleton was not the "Alex" to whom Jackie referred in her account.) But Pinkleton said she would need to ask Jackie for permission to assist the writer. Erdely did not follow up with her. It should have been possible for Erdely to identify the trio independently. Facebook friend

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listings might have shown the names. Or, Erdely could have asked other current students, besides Pinkleton, to help.

Instead, Erdely relied on Jackie. On July 29, she asked Jackie for help in speaking to Ryan, "about corroborating that night, just a second voice?" Jackie answered, according to the writer's notes, that while "Ryan may be awkward, I don't understand why he wouldn't." But Jackie did not respond to follow-up messages Erdely left.

On Sept. 11, Erdely traveled to Charlottesville and met Jackie in person for the first time, at a restaurant near the UVA campus. With her digital recorder running, the reporter again asked about speaking to Ryan. "I did talk to Ryan," Jackie disclosed. She said she had bumped into him and had asked if he would be interested in talking to Rolling Stone. Jackie went on to quote Ryan's incredulous reaction: "No! … I'm in a fraternity here, Jackie, I don't want the Greek system to go down, and it seems like that's what you want to happen. … I don't want to be a part of whatever little shit show you're running."

"Ryan is obviously out," Erdely told

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Jackie a little later.

Yet Jackie never requested – then or later – that Rolling Stone refrain from contacting Ryan, Kathryn or Alex independently. "I wouldn't say it was an obligation" to Jackie, Erdely said later. She worried, instead, that if "I work round Jackie, am I going to drive her from the process?" Jackie could be hard to get hold of, which made Erdely worry that her cooperation remained tentative. Yet Jackie never said that she would withdraw if Erdely sought out Ryan or conducted other independent reporting.

"They were always on my list of people" to track down, Erdely said of the three. However, she grew busy reporting on UVA's response to Jackie's case, she said. She doesn't remember having a distinct conversation about this issue with Woods, her editor. "We just kind of agreed. … We just gotta leave it alone." Woods, however, recalled more than one conversation with Erdely about this. When Erdely said she had exhausted all the avenues for finding the friends, he said he agreed to let it go.

If Erdely had reached Ryan Duffin – his true name – he would have said that he had never told Jackie that he

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would not participate in Rolling Stone's "shit show," Duffin said in an interview for this report. The entire conversation with Ryan that Jackie described to Erdely "never happened," he said. Jackie had never tried to contact him about cooperating with Rolling Stone. He hadn't seen Jackie or communicated with her since the previous April, he said.

If Erdely had learned Ryan's account that Jackie had fabricated their conversation, she would have changed course immediately, to research other UVA rape cases free of such contradictions, she said later.

If Erdely had called Kathryn Hendley and Alex Stock – their true names – to check their sides of Jackie's account of Sept. 28 and 29, they would have denied saying any of the words Jackie attributed to them (as Ryan would have as well). They would have described for Erdely a history of communications with Jackie that would have left the reporter with many new questions. For example, the friends said that Jackie told them that her date on Sept. 28 was not a lifeguard but a student in her chemistry class named Haven Monahan. (The Charlottesville police said in March they could not identify a UVA student or any other person

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named Haven Monahan.) All three friends would have spoken to Erdely, they said, if they had been contacted.

The episode reaffirms a truism of reporting: Checking derogatory information with subjects is a matter of fairness, but it can also produce surprising new facts.

'Can you comment?'

Throughout her reporting, Erdely told Jackie and others that she wanted to publish the name of the fraternity where Jackie said she had been raped. Erdely felt Jackie "was secure" about the name of the fraternity: Phi Kappa Psi.

Last October, as she was finishing her story, Erdely emailed Stephen Scipione, Phi Kappa Psi's local chapter president. "I've become aware of allegations of gang rape that have been made against the UVA chapter of Phi Kappa Psi," Erdely wrote. "Can you comment on those allegations?"

It was a decidedly truncated version of the facts that Erdely believed she had in hand. She did not reveal Jackie's account of the date of the attack. She did not reveal that Jackie said Phi Kappa Psi had hosted a "date function" that night, that prospective

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pledges were present or that the man who allegedly orchestrated the attack was a Phi Kappa Psi member who was also a lifeguard at the university aquatic center. Jackie had made no request that she refrain from providing such details to the fraternity.

The university's administration had recently informed Phi Kappa Psi that it had received an account of a sexual assault at the fraternity that had reportedly taken place in September 2012. Erdely knew that the fraternity had received a briefing from UVA but did not know its specific contents. In fact, in this briefing, Scipione said in a recent interview, UVA provided a mid-September date as the night of the assault – not Sept. 28. And the briefing did not contain the details that Jackie had provided Erdely. The university said only that according to the account it had received, a freshman woman had been drinking at a party, had gone upstairs and had been forced to have oral sex with multiple men.

On Oct. 15, Scipione replied to Erdely's request for comment. He had learned, he wrote to her by email, "that an individual who remains unidentified had supposedly reported to someone who supposedly reported

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to the University that during a party there was a sexual assault." He added, "Even though this allegation is fourth hand and there are no details and no named accuser, the leadership and fraternity as a whole have taken this very seriously."

Erdely next telephoned Shawn Collinsworth, then Phi Kappa Psi's national executive director. Collinsworth volunteered a summary of what UVA had passed on to the fraternity's leaders: that there were allegations of "gang rape during Phi Psi parties" and that one assault "took place in September 2012."

Erdely asked him, according to her notes, "Can you comment?"

If Erdely had provided Scipione and Collinsworth the full details she possessed instead of asking simply for "comment," the fraternity might have investigated the facts she presented. After Rolling Stone published, Phi Kappa Psi said it did just that. Scipione said in an interview that a review of the fraternity's social media archives and bank records showed that the fraternity had held no date function or other party on the night Jackie said she was raped. A comparison of fraternity membership rolls with aquatic center employment

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records showed that it had no members who worked as lifeguards, Scipione added.

Erdely said Scipione had seemed "really vague," so she focused on getting a reply from Collinsworth. "I felt that I gave him a full opportunity to respond," she said. "I felt very strongly that he already knew what the allegations were because they'd been told by UVA." As it turned out, however, the version of the attack provided to Phi Kappa Psi was quite different from and less detailed than the one Jackie had provided to Erdely.

Scipione said that Rolling Stone did not provide the detailed information the fraternity required to respond properly to the allegations. "It was complete bullshit," he said. "They weren't telling me what they were going to write about. They weren't telling me any dates or details." Collinsworth said that he was also not provided the details of the attack that ultimately appeared in Rolling Stone.

There are cases where reporters may choose to withhold some details of what they plan to write while seeking verification for fear that the subject might "front run" by rushing out a favorably spun version pre-emptively. There are sophisticated journalistic

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subjects in politics and business that sometimes burn reporters in this way. Even so, it is risky for a journalist to withhold detailed derogatory information from any subject before publication. Here, there was no apparent need to fear "front-running" by Phi Kappa Psi.

Even if Rolling Stone did not trust Phi Kappa Psi's motivations, if it had given the fraternity a chance to review the allegations in detail, the factual discrepancies the fraternity would likely have reported might have led Erdely and her editors to try to verify Jackie's account more thoroughly.

The mystery of "Drew"

In her interviews, Jackie freely used a first name – but no last name – of the lifeguard she said had orchestrated her rape. On Sept. 16, for the first time, Erdely raised the possibility of tracking this man down.

"Any idea what he's up to now?" Erdely asked, according to her notes.

"No, I just know he's graduated. I've blocked him on Facebook," Jackie replied. "One of my friends looked him up – she wanted to see him so she could recognize and kill him," Jackie said, laughing. "I couldn't even look at

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his Facebook page."

"How would you feel if I reached out to him for a comment?" Erdely asked, the notes record.

"I'm not sure I would be comfortable with that."

That exchange inaugurated a six-week struggle between Erdely and Jackie. For a while, it seemed to Erdely as if the stalemate might lead Jackie to withdraw from cooperation altogether.

On Oct. 20, Erdely asked again for the man's last name. "I'm not going to use his name in the article, but I have to do my due diligence anyway," Erdely told Jackie, according to the writer's notes. "I imagine he's going to say nothing, but it's something I need to do."

"I don't want to give his last name," Jackie replied. "I don't even want to get him involved in this. … He completely terrifies me. I've never been so scared of a person in my entire life, and I've never wanted to tell anybody his last name. … I guess part of me was thinking that he'd never even know about the article."

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"Of course he's going to know about the article," Erdely said. "He's going to read it. He probably knows about the article already."

Jackie sounded shocked, according to Erdely's notes. "I don't want to be the one to give you the name," Jackie said.

"How else do you suggest I find it out?"

"I guess you could ask Phi Psi for their list," Jackie suggested.

After this conversation, Jackie stopped responding to Erdely's calls and messages. "There was a point in which she disappeared for about two weeks," Erdely said, "and we became very concerned" about Jackie's well-being. "Her behavior seemed consistent with a victim of trauma."

Yet Jackie made no demand that Rolling Stone not try to identify the lifeguard independently. She even suggested a way to do so – by checking the fraternity's roster. Nor did she condition her participation in the story on Erdely agreeing not to try to identify the lifeguard.

Erdely did try to identify the man on her own. She asked Jackie's friends if

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they could help. They demurred. She searched online to see if the clues she had would produce a full name. This turned up nothing definitive. "She was very aggressive about contacting" the lifeguard, said Pinkleton, one of the students Erdely asked for assistance.

With the benefit of hindsight, to succeed, Erdely probably would have had to persuade students to access the aquatic center's employment records, to find possible name matches. That might have taken time and luck.

By October's end, with the story scheduled for closing in just two weeks, Jackie was still refusing to answer Erdely's texts and voicemails. Finally, on Nov. 3, after consulting with her editors, Erdely left a message for Jackie proposing to her a "solution" that would allow Rolling Stone to avoid contacting the lifeguard after all. The magazine would use a pseudonym; "Drew" was eventually chosen.

After Erdely left this capitulating voicemail, Jackie called back quickly. According to Erdely, she now chatted freely about the lifeguard, still without using his last name. From that point on, through the story's publication, Jackie cooperated.

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In December, Jackie told The Washington Post in an interview that after several interviews with Erdely, she had asked to be removed from the story, but that Erdely had refused. Jackie told the Post she later agreed to participate on condition that she be allowed to fact-check parts of her story. Erdely said in an interview for this report that she was completely surprised by Jackie's statements to the Post and that Jackie never told her she wanted to withdraw from the story. There is no evidence of such an exchange between Jackie and Erdely in the materials Erdely submitted to Rolling Stone.

There was, in fact, an aquatic center lifeguard who had worked at the pool at the same time as Jackie and had the first name she had used freely with Erdely. He was not a member of Phi Kappa Psi, however. The police interviewed him and examined his personal records. They found no evidence to link him to Jackie's assault.

If Rolling Stone had located him and heard his response to Jackie's allegations, including the verifiable fact that he did not belong to Phi Kappa Psi, this might have led Erdely to reconsider her focus on that case. In any event, Rolling Stone stopped

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looking for him.

***

'What Are They Hiding?'

"A Rape on Campus" had ambitions beyond recounting one woman's assault. It was intended as an investigation of how colleges deal with sexual violence. The assignment was timely. The systems colleges have put in place to deal with sexual misconduct have come under intense scrutiny. These systems are works in progress, entangled in changing and sometimes contradictory federal rules that seek at once to keep students safe, hold perpetrators to account and protect every student's privacy.

The legal issues date to 1977, when five female students sued Yale University, arguing that they had been sexually harassed. The students invoked Title IX of the Education Amendments of 1972, a federal law that bans gender discrimination in education. They lost their case, but their argument – that sexual harassment and violence on campus threatened women's access to education – prevailed over time. By the mid-1980s, hundreds of colleges had adopted procedures to manage sexual misconduct, from stalking to

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rape. If universities failed to do so adequately, they could lose federal funding.

In late 2009, the Center for Public Integrity began to publish a series of articles that helped inspire even stricter federal guidelines. The articles bared problems with the first generation of campus response: botched investigations by untrained staff members; adjudication processes shrouded in secrecy; and sanctions so lacking that they sometimes allowed rapists, including repeat offenders, to remain on campus while their victims fled school.

The Obama administration took up the cause. It pressured colleges to adopt more rigorous systems, and it required a lower threshold of guilt to convict a student before school tribunals. The new pressure caused confusion, however, and, in some cases, charges of injustice. Last October, a group of Harvard Law School professors wrote that its university's revised sexual misconduct policy was "jettisoning balance and fairness in the rush to appease certain federal administrative officials."

Erdely's choice of the University of Virginia as a case study was well timed. The week she visited campus,

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an 18-year-old UVA sophomore went missing and was later found to have been abducted and killed. The university had by then endured a number of highly visible sexual assault cases. The Department of Education's Office of Civil Rights had placed the school, along with 54 others, under a broad compliance review.

"The overarching point of the article," Erdely wrote in response to questions from The Washington Post last December, was not Jackie, but "the culture that greeted her and so many other UVA women I interviewed, who came forward with allegations, only to be met with indifference."

Erdely saw her reporting about UVA as an examination, she said in an interview for this report, of "the way colleges handle these types of things." Jackie "was just the most dramatic example."

'A chilling effect'

After she heard Jackie's shocking story, Erdely zeroed in on the obligation of universities under federal law to issue timely warnings when there is a "serious or continuing" threat to student safety. Erdely understood from Jackie that eight months after the alleged assault,

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she had reported to UVA about being gang-raped at the Phi Kappa Psi house on campus grounds, in what appeared to be a hazing ritual. The university, Rolling Stone reported in its published story, was remiss in not warning its students about this apparently predatory fraternity.

According to the Charlottesville police, Jackie did meet with assistant dean of students Nicole Eramo on May 20, 2013. During that meeting, Jackie described her assault differently than she did later for Erdely, the police said, declining to provide details. According to members of the UVA community knowledgeable about the case, who asked not to be identified in order to speak about confidential university matters, Jackie recounted to Eramo the same story she had told her friends on the night of Sept. 28: She was forced to have oral sex with several men while at a fraternity party. Jackie did not name the fraternity where the assault occurred or provide names or details about her attackers, the sources said. No mention was made of hazing. (Citing student privacy and ongoing investigations, the UVA administration, through its communications office, declined to answer questions about the case.)

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Over the years, the Department of Education has issued guidelines that stress victim confidentiality and autonomy. This means survivors decide whether to report and what assistance they would like. "If she did not identify any individual or Greek organization by name, the university was very, very limited in what it can do," said S. Daniel Carter, a campus safety advocate and director of the nonprofit 32 National Campus Safety Initiative.

As Rolling Stone reported, at their May 2013 meeting, Eramo presented Jackie her options: reporting the assault to the police or to the university's Sexual Misconduct Board. The dean also offered counseling and other services. She checked with Jackie in succeeding weeks to see whether she wanted to take action. She introduced Jackie to One Less, a student group made up of sexual assault survivors and their advocates.

The university did not issue a warning at this point because Jackie did not file a formal complaint and her account did not include the names of assailants or a specific fraternity, according to the UVA sources. It also made no mention of hazing.

Between that time and April 2014, the

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university received no further information about Jackie's case, according to the police and UVA sources.

On April 21, 2014, Jackie again met with Eramo, according to the police. She told the dean that she was now coming under pressure for her visible activism on campus with assault prevention groups such as Take Back the Night, according to the UVA sources. Three weeks earlier, she said, she had been hit in the face by a bottle thrown by hecklers outside a Charlottesville bar. She also added a new piece of information to her earlier account of the gang rape she had endured. She named Phi Kappa Psi as the fraternity where the assault had taken place, the police said later. Moreover, she mentioned to Eramo two other students who she said had been raped at that fraternity. But she did not reveal the names of these women or any details about their assaults.

When there is credible information about multiple acts of sexual violence by the same perpetrator that may put students at risk, Department of Education guidelines indicate the university should take action even when no formal complaint has been filed. The school should also consider

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whether to issue a public safety warning. Once more, the University of Virginia did not issue a warning. Whether the administration should have done so, given the information it then possessed, is a question under review by the University of Virginia's governing Board of Visitors, aided by fact-finding and analysis by the law firm O'Melveny & Myers. (On March 30, UVA updated its sexual assault policy to include more clearly defined procedures for assessing threats and issuing timely warnings.)

The day after her meeting with the dean, Jackie met with Charlottesville and UVA police in a meeting arranged by Eramo. Jackie reported both the bottle-throwing incident and her assault at the Phi Kappa Psi house. The police later said that she declined to provide details about the gang rape because "[s]he feared retaliation from the fraternity if she followed through with a criminal investigation." The police also said they found significant discrepancies in Jackie's account of the day she said she was struck by the bottle.

That summer, Erdely began interviewing multiple UVA assault survivors. University officials still hoped that Jackie and the two other victims she had mentioned would file

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formal charges, the UVA sources said. Erdely knew this: On July 14, Emily Renda, who had graduated in May and taken a job in the university's student affairs office, told the reporter that it might be unwise for Rolling Stone to name Phi Kappa Psi in its story because "there are two other women who have not come forward fully yet, and we are trying to persuade them to get punitive action against the fraternity." Renda wrote later in an email for this report that she had tried to dissuade the writer "because of due process concerns and the way in which publicly accusing a fraternity might both prevent any future justice, but also infringe on their rights." Renda's warning to Erdely – a notice from a UVA employee that Phi Kappa Psi was under university scrutiny over allegations made by Jackie and two others – added to the impression that UVA regarded Jackie's narrative as reliable.

As it turned out, however, all of the information that the reporter, Renda and UVA possessed about the two other reported victims, in addition to Jackie, came only from Jackie. One of the women filed an anonymous report through the UVA online system – Jackie told Erdely she was there when the student pressed the "send" button – but neither of the women has been

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heard from since.

'I'm afraid it may look like we're trying to hide something'

In early September, Erdely asked to interview Eramo. The request created a dilemma for UVA. Universities must comply with a scaffold of federal laws that limit what they can make public about their students. The most important of these is the Family Educational Rights and Privacy Act, or FERPA, which protects student privacy and can make it difficult for university staff members to release records or answer questions about any enrollee.

Eramo was willing to talk if she wasn't asked about specific cases, but about hypothetical situations, as Erdely had cleverly suggested as a way around student privacy limitations.

"Since [Erdely] was referred to me by the students she interviewed, I'm afraid it may look like we are trying to hide something for me not to speak with her," Eramo said in an email to the UVA communications staff, recently released in response to a Freedom of Information Act request.

The communications office endorsed the interview, but Vice President for

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Student Life Patricia Lampkin vetoed the idea. "This is not reflective of Nicole," she wrote in an email, "but of the issue and how reporters turn the issue." Asked to clarify that statement for this review, Lampkin said she felt that given FERPA restrictions, there was nothing Eramo could say in an interview that would give Erdely "a full and balanced view of the situation."

The distrust was mutual. "I had actually gone to campus thinking that they were going to be very helpful," Erdely said. Now she felt she was being stonewalled. Among other things, she said Jackie and Alex Pinkleton told her that after Rolling Stone started asking questions on campus, UVA administrators contacted Phi Kappa Psi for the first time about the allegations of sexual assault at the fraternity house.

To Erdely, UVA looked as if it was in damage control mode. "So I think that instead of being skeptical of Jackie," she said, "I became skeptical of UVA. … What are they hiding and why are they acting this way?"

It is true that UVA did not get in touch with Phi Kappa Psi until Erdely showed up on campus. University sources offered an explanation. They

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said that administrators had contemplated suspending the fraternity's charter, but that would mean no university oversight over Phi Kappa Psi. They had also put off contacting the fraternity in the summer in the hope that Jackie and the other alleged victims would file charges. That hadn't happened, so they decided to act, even before Erdely started asking questions, these sources said. (At the time of the writing of this report, the university had released no documentary evidence to support the decision- making sequence these sources described.) In any event, there was reason for Rolling Stone to be skeptical. UVA's history of managing sexual misconduct is checkered, as Erdely illustrated in other cases she reported on.

On Oct. 2, Erdely interviewed UVA President Teresa Sullivan. The reporter asked probing questions that revealed the gap between the number of assault cases that the university reported publicly and the cases that had been brought to the university's attention internally. Erdely described the light sanctions imposed on students found guilty of sexual misconduct. She asked about allegations of gang rapes at Phi Kappa Psi. Sullivan said that a fraternity was

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under investigation but declined to comment further about specific cases.

Following the recent announcement by the Charlottesville police that they could find no basis for Rolling Stone's account of Jackie's assault, Sullivan issued a statement. "The investigation confirms what federal privacy law prohibited the university from sharing last fall: That the university provided support and care to a student in need, including assistance in reporting potential criminal conduct to law enforcement," she said.

Erdely concluded that UVA had not done enough. "Having presumably judged there to be no threat," she wrote in her published story, UVA "took no action to warn the campus that an allegation of gang rape had been made against an active fraternity." Overall, she wrote, "rapes are kept quiet" at UVA in part because of "an administration that critics say is less concerned with protecting students than it is with protecting its own reputation from scandal."

During the six months she worked on the story, Erdely concentrated her reporting on the perspectives of victims of sexual violence at the University of Virginia and other campuses. She was moved by their

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experiences and their diverse frustrations. Her access to the perspectives of UVA administrators was much more limited, in part because some of them were not permitted to speak with her but also because Erdely came to see them as obstacles to her reporting.

In the view of some of Erdely's sources, the portrait she created was unfair and mistaken. "The university's response is not, 'We don't care,' " said Pinkleton, Jackie's confidante and a member of One Less. "When I reported my own assault, they immediately started giving me resources."

For her part, Eramo rejects the article's suggestion that UVA places its own reputation above protecting students. In an email provided by her lawyers, the dean wrote that the article falsely attributes to her statements she never made (to Jackie or otherwise) and that it "trivializes the complexities of providing trauma- informed support to survivors and the real difficulties inherent in balancing respect for the wishes of survivors while also providing for the safety of our communities."

"UVA does have plenty of room to grow in regard to prevention and

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response, as most if not all, colleges do," said Sara Surface, a junior who co-chairs UVA's Sexual Violence Prevention Coalition. She added, "The administrators and staff that work directly with and advocate for survivors are not more interested in the college's reputation over the well-being of its students."

***

The Editing: 'I Wish Somebody Had Pushed Me Harder'

Sean Woods, Erdely's primary editor, might have prevented the effective retraction of Jackie's account by pressing his writer to close the gaps in her reporting. He started his career in music journalism but had been editing complex reported features at Rolling Stone for years. Investigative reporters working on difficult, emotive or contentious stories often have blind spots. It is up to their editors to insist on more phone calls, more travel, more time, until the reporting is complete. Woods did not do enough.

Rolling Stone publisher Jann Wenner said he typically reads about half of the stories in each issue before publication. He read a draft of Erdely's narrative and found Jackie's

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case "extremely strong, powerful, provocative. … I thought we had something really good there." But Wenner leaves the detailed editorial supervision to managing editor Will Dana, who has been at the magazine for almost two decades. Dana might have looked more deeply into the story drafts he read, spotted the reporting gaps and insisted that they be fixed. He did not. "It's on me," Dana said. "I'm responsible."

In hindsight, the most consequential decision Rolling Stone made was to accept that Erdely had not contacted the three friends who spoke with Jackie on the night she said she was raped. That was the reporting path, if taken, that would have almost certainly led the magazine's editors to change plans.

Erdely said that as she was preparing to write her first draft, she talked with Woods about the three friends. "Sean advised me that for now we should just put this aside," she said. "He actually suggested that I change their names for now." Woods said that he intended this decision to be temporary, pending further reporting and review.

Erdely used pseudonyms in her first draft: "Randall," "Cindy" and

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"Andrew." She relied solely on Jackie's information and wrote vividly about how the three friends had reacted after finding Jackie shaken and weeping in the first hours of Sept. 29:

The group looked at each other in a panic. They all knew about Jackie's date that evening at Phi Kappa Psi, the house looming behind them. "We have got to get her to the hospital," Randall declared. The other two friends, however, weren't convinced. "Is that such a good idea?" countered Cindy. … "Her reputation will be shot for the next four years." Andrew seconded the opinion. The three friends launched into a heated discussion about the social price of reporting Jackie's rape, while Jackie stood behind them, mute in her bloody dress.

Erdely inserted a note in her draft, in bold type: "she says – all her POV" – to indicate to her editors that the dialogue had come only from Jackie.

"In retrospect, I wish somebody had pushed me harder" about reaching out to the three for their versions, Erdely said. "I guess maybe I was surprised that nobody said, 'Why haven't you called them?' But nobody did, and I wasn't going to press that issue." Of course, just because an editor does

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not ask a reporter to check derogatory information with a subject, that does not absolve the reporter of responsibility.

Woods remembered the sequence differently. After he read the first draft, he said, "I asked Sabrina to go reach" the three friends. "She said she couldn't. … I did repeatedly ask, 'Can we reach these people? Can we?' And I was told no." He accepted this because "I felt we had enough." The documentary evidence provided by Rolling Stone sheds no light on whose recollection -- Erdely's or Wood's – is correct.

Woods said he ultimately approved pseudonyms because he didn't want to embarrass the three students by having Jackie's account of their self-involved patter out there for all their friends and classmates to see. "I wanted to protect them," he said.

For his part, Dana said he did not recall talking with Woods or Erdely about the three friends at all.

'We need to verify this'

None of the editors discussed with Erdely whether Phi Kappa Psi or UVA, while being asked for "comment," had been given enough detail about

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Jackie's narrative to point out holes or contradictions. Erdely never raised the subject with her editors.

As to "Drew," the lifeguard, Dana said he was not even aware that Rolling Stone did not know the man's full name and had not confirmed his existence. Nor was he told that "we'd made any kind of agreement with Jackie to not try to track this person down."

As noted, there was no such explicit compact between Erdely and Jackie, according to Erdely's records. Jackie requested Erdely not to contact the lifeguard, but there was no agreement.

"Can you call the pool? Can you call the frat? Can you look at yearbooks?" Woods recalled asking Erdely after he read the first draft. "If you've got to go around Jackie, fine, but we need to verify this," meaning Drew's identity. He remembered having this discussion "at least three times."

But when Jackie became unresponsive to Erdely in late October, Woods and Dana gave in. They authorized Erdely to tell Jackie they would stop trying to find the lifeguard. Woods resolved the issue as he had done earlier with the three friends: by using a pseudonym in the story.

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'I had a faith'

It is not possible in journalism to reach every source a reporter or editor might wish. A solution is to be transparent with readers about what is known or unknown at the time of publication.

There is a tension in magazine and narrative editing between crafting a readable story – a story that flows – and providing clear attribution of quotations and facts. It can be clunky and disruptive to write "she said" over and over. There should be room in magazine journalism for diverse narrative voicing – if the underlying reporting is solid. But the most egregious failures of transparency in "A Rape on Campus" cannot be chalked up to writing style. They obfuscated important problems with the story's reporting.

-- Rolling Stone's editors did not make clear to readers that Erdely and her editors did not know "Drew's" true name, had not talked to him and had been unable to verify that he existed. That was fundamental to readers' understanding. In one draft of the story, Erdely did include a disclosure. She wrote that Jackie "refuses to divulge [Drew's] full name to RS," because she is "gripped by

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fears she can barely articulate." Woods cut that passage as he was editing. He "debated adding it back in" but "ultimately chose not to."

-- Woods allowed the "shit show" quote from "Randall" into the story without making it clear that Erdely had not gotten it from him but from Jackie. "I made that call," Woods said. Not only did this mislead readers about the quote's origins, it also compounded the false impression that Rolling Stone knew who "Randall" was and had sought his and the other friends' side of the story.

The editors invested Rolling Stone's reputation in a single source. "Sabrina's a writer I've worked with for so long, have so much faith in, that I really trusted her judgment in finding Jackie credible," Woods said. "I asked her a lot about that, and she always said she found her completely credible."

Woods and Erdely knew Jackie had spoken about her assault with other activists on campus, with at least one suitemate and to UVA. They could not imagine that Jackie would invent such a story. Woods said he and Erdely "both came to the decision that this person was telling the truth." They saw her as a "whistle blower" who was

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fighting indifference and inertia at the university.

The problem of confirmation bias – the tendency of people to be trapped by pre-existing assumptions and to select facts that support their own views while overlooking contradictory ones – is a well-established finding of social science. It seems to have been a factor here. Erdely believed the university was obstructing justice. She felt she had been blocked. Like many other universities, UVA had a flawed record of managing sexual assault cases. Jackie's experience seemed to confirm this larger pattern. Her story seemed well established on campus, repeated and accepted.

"If I had been informed ahead of time of one problem or discrepancy with her overall story, we would have acted upon that very aggressively," Dana said. "There were plenty of other stories we could have told in this piece." If anyone had raised doubts about how verifiable Jackie's narrative was, her case could have been summarized "in a paragraph deep in the story."

No such doubts came to his attention, he said. As to the apparent gaps in reporting, attribution and verification that had accumulated in the story's

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drafts, Dana said, "I had a faith that as it went through the fact-checking that all this was going to be straightened out."

***

Fact-Checking: 'Above My Pay Grade'

At Rolling Stone, every story is assigned to a fact-checker. At newspapers, wire services and in broadcast newsrooms, there is no job description quite like that of a magazine fact-checker. At newspapers, frontline reporters and editors are responsible for stories' accuracy and completeness. Magazine fact-checking departments typically employ younger reporters or college graduates. Their job is to review a writer's story after it has been drafted, to double-check details like dates and physical descriptions. They also look at issues such as attribution and whether story subjects who have been depicted unfavorably have had their say. Typically, checkers will speak with the writer's sources, sometimes including confidential sources, to verify facts within quotations and other details. To be effective, checkers must be empowered to challenge the decisions of writers and editors who may be much more senior and experienced.

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In this case, the fact-checker assigned to "A Rape on Campus" had been checking stories as a freelancer for about three years, and had been on staff for one and a half years. She relied heavily on Jackie, as Erdely had done. She said she was "also aware of the fact that UVA believed this story to be true." That was a misunderstanding. What Rolling Stone knew at the time of publication was that Jackie had given a version of her account to UVA and other student activists. A university employee, Renda, had made reference to that account in congressional testimony. UVA had placed Phi Kappa Psi under scrutiny. None of this meant that the university had reached a conclusion about Jackie's narrative. The checker did not provide the school with the details of Jackie's account to Erdely of her assault at Phi Kappa Psi.

The checker did try to improve the story's reporting and attribution of quotations concerning the three friends. She marked on a draft that Ryan – "Randall" under pseudonym – had not been interviewed, and that his "shit show" quote had originated with Jackie. "Put this on Jackie?" the checker wrote. "Any way we can confirm with him?" She said she talked about this problem of clarity with Woods and Erdely. "I pushed. …

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They came to the conclusion that they were comfortable" with not making it clear to readers that they had never contacted Ryan.

She did not raise her concerns with her boss, Coco McPherson, who heads the checking department. "I have instructed members of my staff to come to me when they have problems or are concerned or feel that they need some muscle," McPherson said. "That did not happen." Asked if there was anything she should have been notified about, McPherson answered: "The obvious answers are the three friends. These decisions not to reach out to these people were made by editors above my pay grade."

McPherson read the final draft. This was a provocative, complex story heavily reliant on a single source. She said later that she had faith in everyone involved and didn't see the need to raise any issues with the editors. She was the department head ultimately responsible for fact-checking.

Natalie Krodel, an in-house lawyer for Wenner Media, conducted a legal review of the story before publication. Krodel had been on staff for several years and typically handled about half of Rolling Stone's pre-publication

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reviews, sharing the work with general counsel Dana Rosen.5 It is not clear what questions the lawyer may have raised about the draft. Erdely and the editors involved declined to answer questions about the specifics of the legal review, citing instructions from the magazine's outside counsel, Elizabeth McNamara, a partner at Davis Wright Tremaine. McNamara said Rolling Stone would not answer questions about the legal review of "A Rape on Campus" in order to protect attorney-client privilege.

***

The Editor's Note: 'I Was Pretty Freaked Out'

On Dec. 5, following Erdely's early- morning declaration that she had lost confidence in her sourcing, Rolling Stone posted an editor's note on its website that effectively withdrew the magazine's reporting on Jackie's case.

The note was composed and published hastily. The editors had heard that The Washington Post intended to publish a story that same day calling the magazine's reporting into question. They had also heard that Phi Kappa Psi would release a statement disputing some of Rolling Stone's account. Dana said there was

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no time to conduct a "forensic investigation" into the story's issues. He wrote the editor's note "very quickly" and "under a lot of pressure."

He posted it at about noon, under his signature. "In the face of new information, there now appear to be discrepancies in Jackie's account, and we have come to the conclusion that our trust in her was misplaced," it read. That language deflected blame from the magazine to its subject and it attracted yet more criticism. Dana said he rued his initial wording. "I was pretty freaked out," he said. "I regretted using that phrase pretty quickly." Early that evening, he changed course in a series of tweets. "That failure is on us – not on her," he wrote. A revised editor's note, using similar language, appeared the next day.

Yet the final version still strained to defend Rolling Stone's performance. It said that Jackie's friends and student activists at UVA "strongly supported her account." That implied that these friends had direct knowledge of the reported rape. In fact, the students supported Jackie as a survivor, friend and fellow campus reformer. They had heard her story, but they could not independently

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confirm it.

***

Looking Forward

For Rolling Stone: An Exceptional Lapse or a Failure of Policy?

The collapse of "A Rape on Campus" does not involve the kinds of fabrication by reporters that have occurred in some other infamous cases of journalistic meltdown. In 2003, the New York Times reporter Jayson Blair resigned after editors concluded that he had invented stories from whole cloth. In February, NBC News suspended anchor Brian Williams after he admitted that he told tall tales about his wartime reporting in Iraq. There is no evidence in Erdely's materials or from interviews with her subjects that she invented facts; the problem was that she relied on what Jackie told her without vetting its accuracy.

"It's been an extraordinarily painful and humbling experience," Woods said. "I've learned that even the most trusted and experienced people – including, and maybe especially, myself – can make grave errors in judgment."

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Yet Rolling Stone's senior editors are unanimous in the belief that the story's failure does not require them to change their editorial systems. "It's not like I think we need to overhaul our process, and I don't think we need to necessarily institute a lot of new ways of doing things," Dana said. "We just have to do what we've always done and just make sure we don't make this mistake again." Coco McPherson, the fact-checking chief, said, "I one hundred percent do not think that the policies that we have in place failed. I think decisions were made around those because of the subject matter."

Yet better and clearer policies about reporting practices, pseudonyms and attribution might well have prevented the magazine's errors. The checking department should have been more assertive about questioning editorial decisions that the story's checker justifiably doubted. Dana said he was not told of reporting holes like the failure to contact the three friends or the decision to use misleading attributions to obscure that fact.

Stronger policy and clearer staff understanding in at least three areas might have changed the final outcome:

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Pseudonyms. Dana, Woods and McPherson said using pseudonyms at Rolling Stone is a "case by case" issue that requires no special convening or review. Pseudonyms are inherently undesirable in journalism. They introduce fiction and ask readers to trust that this is the only instance in which a publication is inventing details at its discretion. Their use in this case was a crutch – it allowed the magazine to evade coming to terms with reporting gaps. Rolling Stone should consider banning them. If its editors believe pseudonyms are an indispensable tool for its forms of narrative writing, the magazine should consider using them much more rarely and only after robust discussion about alternatives, with dissent encouraged.

Checking Derogatory Information. Erdely and Woods made the fateful agreement not to check with the three friends. If the fact-checking department had understood that such a practice was unacceptable, the outcome would almost certainly have changed.

Confronting Subjects With Details. When Erdely sought "comment," she missed the opportunity to hear challenging, detailed rebuttals from Phi Kappa Psi before publication. The

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fact-checker relied only on Erdely's communications with the fraternity and did not independently confirm with Phi Kappa Psi the account Rolling Stone intended to publish about Jackie's assault. If both the reporter and checker had understood that by policy they should routinely share specific, derogatory details with the subjects of their reporting, Rolling Stone might have veered in a different direction.

For Journalists: Reporting on Campus Rape

Rolling Stone is not the first news organization to be sharply criticized for its reporting on rape. Of all crimes, rape is perhaps the toughest to cover. The common difficulties that reporters confront – including scarce evidence and conflicting accounts – can be magnified in a college setting. Reporting on a case that has not been investigated and adjudicated, as Rolling Stone did, can be even more challenging.

There are several areas that require care and should be the subject of continuing deliberation among journalists:

Balancing sensitivity to victims and the demands of verification. Over the

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years, trauma counselors and survivor support groups have helped journalists understand the shame attached to rape and the powerlessness and self-blame that can overwhelm victims, particularly young ones. Because questioning a victim's account can be traumatic, counselors have cautioned journalists to allow survivors some control over their own stories. This is good advice. Yet it does survivors no good if reporters documenting their cases avoid rigorous practices of verification. That may only subject the victim to greater scrutiny and skepticism.

Problems arise when the terms of the compact between survivor and journalist are not spelled out. Kristen Lombardi, who spent a year and a half reporting the Center for Public Integrity's series on campus sexual assault, said she made it explicit to the women she interviewed that the reporting process required her to obtain documents, collect evidence and talk to as many people involved in the case as possible, including the accused. She prefaced her interviews by assuring the women that she believed in them but that it was in their best interest to make sure there were no questions about the veracity of their accounts. She also allowed victims some control, including

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determining the time, place and pace of their interviews.

If a woman was not ready for such a process, Lombardi said, she was prepared to walk away.

Corroborating survivor accounts. Walt Bogdanich, a Pulitzer Prize- winning investigative reporter for The New York Times who has spent the past two years reporting on campus rape, said he tries to track down every available shred of corroborating evidence – hospital records, 911 calls, text messages or emails that have been sent immediately after the assault. In some cases, it can be possible to obtain video, either from security cameras or from cellphones.

Many assaults take place or begin in semipublic places such as bars, parties or fraternity houses. "Campus sexual violence probably has more witnesses, bystanders, etc. than violence in other contexts," said Elana Newman, a University of Tulsa psychology professor who has advised journalists on trauma. "It might be useful for journalists to think about all the early signals and signs" and people who saw or ignored them early on, she said.

Every rape case has multiple narratives, Newman said. "If there are

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inconsistencies, explain those inconsistencies." Reporters should also bear in mind that trauma can impair a victim's memory and that this can be a cause of fragmentary and contradictory accounts.

Victims often interact with administrators, counselors and residence hall staff members. "I've always found that the people most willing to talk are these front-line staff," said Lombardi, who said she phoned or visited potential sources at home and talked to them on background because of their concerns about student privacy.

FERPA restrictions are severe, yet the law allows students to access their own school records. Students at public universities can also sign privacy waivers that would allow reporters to obtain their records, including case files and reports.

Moreover, there's a FERPA exception: In sexual assault cases that have reached final disposition and a student has been found responsible, campus authorities can release the name of the student, the violation committed and any sanction imposed. (The Student Press Law Center provides good advice on navigating FERPA.)

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Holding institutions to account. Given the difficulties, journalists are rarely in a position to prove guilt or innocence in rape. "The real value of what we do as journalists is analyzing the response of the institutions to the accusation," Bogdanich said. This approach can also make it easier to persuade both victims and perpetrators to talk. Lombardi said the women she interviewed were willing to help because the story was about how the system worked or didn't work. The accused, on the other hand, was often open to talking about perceived failings of the adjudication process.

To succeed at such reporting, it is necessary to gain a deep understanding of the tangle of rules and guidelines on campus sexual assault. There's Title IX, the Clery Act and the Violence Against Women Act. There are directives from the Office of Civil Rights and recommendations from the White House. Congress and state legislatures are proposing new laws.

The responsibilities that universities have in preventing campus sexual assault – and the standards of performance they should be held to – are important matters of public interest. Rolling Stone was right to

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take them on. The pattern of its failure draws a map of how to do better.

NOTES:

1. This report is intended as a work of journalism about a failure of journalism. Last November, Rolling Stone published "A Rape on Campus" by Sabrina Rubin Erdely. Its principal narrative recounted a horrible gang rape at a University of Virginia fraternity. Early in December, Rolling Stone effectively retracted that narrative. Several weeks later, the magazine contacted the Columbia University Graduate School of Journalism about conducting an investigation of what had gone wrong. Rolling Stone provided access to Erdely's reporting records as well as drafts of the story. The authors enjoyed the freedom to investigate and write about any subject related to "A Rape on Campus" that they judged to be germane and in the public interest. The magazine agreed to publish Columbia's review in full on its website, after a legal review, but without editing. Rolling Stone also pledged to publish mutually agreed excerpts in its print magazine.

Over several months, the authors conducted interviews and

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investigations that ranged widely in scope. Yet the final report is not intended to be encyclopedic. The report has several intended purposes. One is to illuminate the key reasons Rolling Stone's failure was avoidable and to draw lessons. In that respect, the report focuses on several of Rolling Stone's failures of reporting, editing and supervision but not on every single misstep that might be inventoried. Another purpose of the report is to assess independently and through fresh reporting some of the subjects Rolling Stone covered in the story, beyond Jackie's account of sexual assault – particularly the timeline of how UVA handled Jackie's information. The report also addresses how Rolling Stone's editorial policies might be reconsidered to prevent future failure. And it evaluates how journalists might begin to define best practices when reporting about rape cases on campus or elsewhere.

Rolling Stone's staff cooperated fully during the review. Coll and Coronel agreed to Rolling Stone's request not to name the story's fact-checker in its report on the grounds that she was a junior employee without ultimate decision-making authority. Several participants from the magazine did decline to answer certain questions

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that they said invaded attorney-client privilege. Neither Columbia nor the authors individually received compensation for the work. Rolling Stone agreed to reimburse expenses.

Sheila Coronel is dean of academic affairs at the Graduate School of Journalism at Columbia University. Steve Coll is dean of the school and the author of seven nonfiction books. Derek Kravitz is a postgraduate research scholar at Columbia.

2. Rolling Stone provided a 405-page record of Erdely's interviews and research notes as well as access to original audio recordings. Erdely turned this record over to Rolling Stone before she or the magazine believed there were any problems with the story. Erdely said she typed notes contemporaneously on a laptop during phone and in-person interviews. In some cases, she taped interviews and meetings and transcribed them later. We compared transcripts Erdely submitted of her recorded interviews with Jackie with the audio files and found the transcripts to be accurate. Erdely's typed notes of interviews contain her own questions or remarks, sometimes placed in brackets, as well as those of her interview subject. Erdely said that she sometimes typed her own

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questions or remarks contemporaneously but that other times she typed them after the interview was over, summarizing the questions she had asked or the comments she had made.

3. Rolling Stone's retraction of its reporting about Jackie concerned the story it printed. The retraction cannot be understood as evidence about what actually happened to Jackie on the night of Sept. 28, 2012. If Jackie was attacked and, if so, by whom, cannot be established definitively from the evidence available.

Jackie's phone records from September 2012 would provide strong evidence about what might have befallen her. But the Charlottesville police said the company they asked to produce Jackie's phone records no longer had her records from 2012. After interviewing about 70 people and obtaining access to some university and fraternity records, the Charlottesville police could say only that they found no evidence of the gang rape Rolling Stone described. This finding, said Police Chief Timothy Longo, "doesn't mean that something terrible didn't happen to Jackie" that night.

4. In a letter, Groves objected to

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Rolling Stone's portrayal of his actions during a University of Virginia Board of Visitors meeting last September. A video of the meeting is available on a UVA website. Groves wrote that Erdely "did not disclose the significant details that I had offered into the scope" of a Department of Education compliance review of UVA. Groves's full letter is here.

In the email sent through her lawyer, Eramo wrote, Rolling Stone "made numerous false statements and misleading implications about the manner in which I conducted my job as the Chair of University of Virginia's Sexual Misconduct Board, including allegations about specific student cases. Although the law prohibits me from commenting on those specific cases in order to protect the privacy of the students who I counsel, I can say that the account of my actions in Rolling Stone is false and misleading. The article trivializes the complexities of providing trauma-informed support to survivors and the real difficulties inherent in balancing respect for the wishes of survivors while also providing for the safety of our communities. As a general matter, I do not — and have never — allowed the possibility of a media story to influence the way I have counseled students or the decisions I have made

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in my position. And contrary to the quote attributed to me in Rolling Stone, I have never called the University of Virginia "the rape school," nor have I ever suggested — either professionally or privately — that parents would not "want to send their daughter" to UVA. As a UVA alumna, and as someone who has lived in the Charlottesville community for over 20 years, I have a deep and profound love for this University and the students who study here."

5. Last December, Rosen left Wenner Media for ALM Media, where she is general counsel. Rosen said her departure had no connection with "A Rape on Campus" and that she had played no part in reviewing the story before publication. She said she began talking with ALM in September, before Erdely's story was filed, about the position she ultimately accepted.

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